JUDGMENT
D.K. Deshmukh, J.
1. By this petition filed under Article 227 of the Constitution of India, the petitioner challenges the Judgment dated 3rd July, 1996 passed by the Additional Chief Judge, Small Causes Court, Bombay in Appeal No. 770 of 1985, dismissing the Appeal filed by the petitioner and confirming the Judgment and decree dated 8.11.1985 passed by learned Trial Judge, Small Causes Court, Bombay in RAE Suit No. 463 of 1971. The suit related to shop No. 62 in Chudiwala building, Khadilkar Road, Kandewadi, Bombay-4. The suit was filed by the Seth Tolaram L. Chudiwala, who described himself as Managing Trustee of Shri Rushikul Bramacharya Ashram Trust. It was claimed that the suit premises are owned by the Trust, which is a registered public trust and of which Shri Chudiwala is a managing trustee. It is an admitted position that apart from the said Chudiwala there are other trustees of the said public trust. Before the Trial Court the maintainability of the suit was challenged on the ground that to a suit for recovery of the property owned by the public trust, all the trustees of the trust must be made parties. On the basis of the objection raised in the written statement a issue was framed by the Trial Court, which reads as under:-
Whether the suit filed by the person purporting to be managing trustee on behalf of all trustees is maintainable?
The Trial Court answered the said issue in affirmative and passed a decree against the petitioner, directing his eviction from the suit premises. The petitioner, therefore, had filed Appeal No. 770 of 1985, challenging the said decree. Perusal of the Judgment of the Appellate Court shows that the first point that was framed by the Appellate Court was “Whether the suit filed by the person purporting to be managing trustee on behalf of the trustees is maintainable?”. The Appellate Court also held that the suit was maintainable and therefore, dismissed the Appeal.
2. It is urged by the learned Counsel appearing for the petitioner that this Court by its Judgment in Nagar Wachan Mandir, Pandharpur v. Akbaralli Abdulhusen and Sons and Ors. has held that “unless the instrument of trust provides delegation of powers, a suit filed for recovery of the property of a public trust must be filed by all the trustees.” The learned Counsel further submits that thus it is a settled law that unless the instrument of trust provides for delegation of powers, all the trustees must institute a suit for recovery of the trust property. He contended that in the plaint, it is clearly stated that the property is owned by the public trust. Neither the instrument of trust has been filed to show that the instrument of trust makes a provision for delegation of the powers of the trustees nor all the trustees have been joined in the suit. The learned Counsel further submitted that the Appellate Court has distinguished the Judgment of this Court in Nagar Wachan Mandir’s case referred to above, relying on the judgment of the Supreme Court in in the case of Vithal Krishanji Nivendkar v. Parduman Ram Singh holding that considering artificial definition of term ‘landlord’ appearing in the Bombay Rent Act, a trustee who is receiving rent becomes a landlord and therefore he alone can file a suit under the Bombay Rent Act. In the submission of the learned Counsel, the Appellate Court, however, did not appreciate that there is no material on record to establish that the said Chudi wala, who had filed the suit was either receiving the rent or was entitled to receive the rent.
3. The learned Counsel appearing for the respondent No. 1 submitted that in the plaint it is averred that the said Chudiwala is a managing trustee of the trust, manages and controls the property and, therefore, in the submission of the learned Counsel, it is clear from these averments that the said Chudiwala is entitled to receive the rent.
4. Perusal of the judgment of this Court in Nagar Wachan Mandir’s case makes it abundantly clear that as a result of series of judgments of the Gujarat High Court and this Court, it is now a settled law that unless an instrument of trust makes a provision of delegation of powers of the trustees in the suit for recovery of the trust property all the trustees must join in the suit and a suit for recovery of the trust property filed by only some of the trustees is not maintainable. Perusal of the Judgment of the Appellate Court shows that the Appellate Court has held that the Judgment of this Court in Nagar Wachan Mandir’s case, is distinguishable because in a suit filed under the provisions of the Bombay Rent Act, a landlord can file a suit and, therefore, if one of the trustees is entitled to receive the rent on behalf of the trust, then he becomes a landlord and the suit filed by him is tenable. The Appellate Court has relied on the observations of the Supreme Court in Vithal K. Nivendkar’s case as referred above. The observation of the Supreme Court to be found in paragraph 8 of that Judgment, reads as under:
The contention that the appellant does not come within the expression ‘Landlord’ defined in Sub-section (3) of Section 5 has no force. The expression ‘landlord’ include a person who is receiving, or is entitled to receive, rent in respect of any premises on account, or on behalf, or for the benefit of any other person, or as a trustee for any other person. The appellant was a trustee of the Sangh. He was receiving rent on account and on behalf of the Sangh and clearly, therefore, he comes within the expression ‘landlord’ as defined in the Act.
The term ‘landlord’ is defined by Section 5(3) of the Bombay Rent Act, which reads as under: –
“landlord” means any person who is for the time being receiving, or entitled to receive rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes person not being a tenant who from time to time derives title under a landlord; and any further includes in respect of his sub-tenant, a tenant who has sublet any premises; ( and also includes in respect of a licencee deemed to be a tenant by Section 15A, the licensor who has given such licence ).
Perusal of the definition shows that in order that a trustee can claim to be a ‘landlord – it must be shown that he (trustee) either is entitled to receive rent or he is receiving the rent. Perusal of the plaint in the present case shows that there is total absence of any averments that the said Chudiwala, who has filed the suit is either entitled to receive the rent or that he actually receives the rent. Mere assertion that the said Chudiwala is a managing trustee, manages and controls the property of the trust would not be tentamount to saying that the said Chudiwala is entitled to receive the rent or that he receives the rent. A mere assertion in the plaint that the said Chudiwala is the managing trustee and that he manages the property of the Trust is not enough to make him a landlord within the meaning of the Bombay Rent Act. Unless it is stated that there is a provision in the instrument of Trust for appointment of managing trustees and for exercise of control on the management of the Trust property by such trustee and for exercise of control on the management of the Trust property by such trustee, the managing, trustee cannot be called as ‘landlord’. Therefore, really speaking the evidence in the absence of necessary averments would not have been admissible. However, I find, after persual of the depositions of the two witnesses examined on behalf of the plaintiff that none of the, two witnesses state that the said Chudiwala was entitled to receive the rent or that he actually received the rent. The two rent collectors who have been examined also do not say that they were appointed by the said Chudiwala. Thus there are neither necessary pleadings nor evidence on record to establish that the said Chudiwala, who had filed the suit on behalf of the trust can be called as ‘landlord’ within the meaning of the Bombay Rent Act and therefore the present case would not be covered by the decision of the Supreme Court in Vithal Krishnaji Nivendkar’s case. Persual of the judgment of the Appellate Court shows that the Appellate Court has held that the said Chudiwala was receiving the rent. However, this finding recorded by the Appellate Court, as pointed out above, does not have foundation either in the pleadings or in the evidence. Therefore, the finding of the Appellate Court that the said Chudiwala was receiving the rent is not based on material on record and it is on this finding, a further finding of the Appellate Court that he is a landlord and therefore, is eniitled to file the suit, is based. Therefore, if the basic finding of the Appellate Court that the said Chudiwala was receiving the rent falls to the ground, other two findings recorded by the Appellate Court must also necessarily fall to the ground. Therefore, if the said Chudiwala cannot be said to be a ‘landlord’ within the meaning of Bombay Rent Act, then as has been held by this Court in Nagar Wachan Mandir’s case, referred to above, in a suit filed for recovery of the trust property all the trustees must join and in the absence of some of the trustees, as has been clearly held by this Court, the suit could not be maintainable. It is thus become clear that the suit as framed and filed is not maintainable.
5. In the result, therefore, the petition succeeds and is allowed. Rule is made absolute in terms of prayer Clause (c) to the petition with no order as to costs.