- (1.) S. K. Phaujdar, J.- This appeal is directed against the judgment and decree dated 4-7-1095 passed by the 1st Addl. Civil Judge, Sr. Division Dehradun, in Civil Appeal No. 55 of 1981 which, in its turn, had challenged the judgment and decree dated 31-8-1981 passed by the Illrd Munsif, Dehradun in O. S. No. 195 of 1980. The suit was filed on behalf of two deities, Murti Sri Ram Chandra Ji Maharaj and JVlahadeo Ji Maharaj against the present appellant and another through their shebait for permanent injunction from restraining the defendants from interfer ing in any manner in the functioning, working or performing and doing normal and usual 'duties and functions and ceremonies in the temple and for posses sion of the rooms in occupation of the present appellant and for other ancilary reliefs. It was stated that in the year 1935 a trust was created by a registered deed regarding the temple and deities together with the Dharamshala and shops attached thereto. Plaintiff No. 2 and defendant No. 2 were appointed the trustees by the trust deed. It is not disputed that original plain tiff No. 2, Bhagwati Devi, died and she is represented by Anurag Gupta. There had been a suit against the defendant No. 2 as he had committed a breach of trust by disposing of part of the temple property and the suit was decreed in the year 1985. It was stated that defendant No. 1 (present appellant) was employed as a Pujari to perform the usual Pujas and functionings in the temple and he was provided with an accommodation in the Dharamshala in a room specifically shown in the plaint map. This defendant No. 1 was not carrying out his duties properly and was negligent in performing them and it was necessary to remove him. He was served with a notice terminating his services as a Pujari and calling upon him to quit and vacate the room so left in his occupation. Defendant No. 1 instead of complying with the notice wrongfully occupied four rooms and put his lock over the plaintiffs lock on those rooms. Accordingly, the suit was filed. There was no specific prayer against defendant No. 2, barring that he should not have disturbed or interfered in the normal functioning of the Pujas.
(2.) THE suit was contested by defen dant No. 1. It was asserted on his behalf that the trust in question was a religious trust. It was stated that there was a suit against defendant No. 2 for having com mitted breach of the trust and it was ad mitted further that the suit was decreed. It was, however, asserted that an appeal against the decree is still pending before this Court. It was stated that Anurag Gupta was trying to oust defendant No. 1 "by any means as this defendant was oppos ing the illegal activities of the trustees. THE defendant asserted that he was per forming the sewa of the deities since 1942-43. He was to get a salary of Rs. 40 per month but the said sum was never paid to him. As a pundit he lived a humble life with the formal donations given by the devotees during Pujas. THE allegations of his actions being against the interest of temple were denied. The trial Judge decreed the suit of the plaintiffs against defendant No. 1 and a permanent injunction was issued against him not to interfere in the daily perfor mance of Puja in the temple. There was a further direction that the plaintiffs were entitled to the possession of the rooms which was shown specifically in the map. Defendant No. 1 was directed to give pos session of the same to the plaintiffs within a month from the date of decree. The first appeal that was preferred by the defendant No. 1 was also dismissed with costs. In this second appeal, the substantial questions of law that were framed in the memorandum of appeal read as follows: (1) Whether proper issues were not framed; (2) Whether findings recorded by the Courts are perverse; and (3) Whether trust-deed itself bring under challenge in O. S. No. 109 of 1977 pending before the District Judge, the present suit was barred. The first two points were vague as nothing was shown to indicate which were the issues which were improper and which were the findings that were perverse. The third point was not pressed at all in the course of argument. In the alternative, the learned Counsel proposed to add three more grounds as additional substantial questions of law. The first two of these three points were again vague and by order dated 9-7-1996 the learned Counsel for the appellant was allowed to urge only the third point which read as follows: Whether the suit filed by the plaintiff for removal of trustee without following the procedure prescribed in Section 92, CPC can be permitted to be decreed? In the course of arguments, the learned Counsel raised another point which could be formulated as under: Whether defendant No. 1 could be protected under Section 14 of the U. P. Act No. 13 of 1972 against the eviction. The aforesaid two points were elaborated by Sri Rajesh Tandon appearing for the ap pellant and these two points were met in his arguments by Sri Aditya Narain ap pearing for the respondent. On the first question on which the appeal was pressed, reference was made to Section 92 of the CPC. It was stated that the suit was filed not by two or more persons having interest in the trust and no leave of the Court was obtained prior to the filing of the suit. Accordingly, the suit was bad in law. Such a plea was never raised before the trial Court or the first appellate Court but the learned Counsel was allowed to agitate the same as it involveda substantial ques tion of law. A plain reading of the plaint, however, indicates that it was not a suit alleging any breach of trust, express or constructive or for a direction of the Court in connection with any of the items (a) to (h) as indicated in Section 92. Sri Tandon had not raised any point before me in this appeal to indicate how the provisions of Section 92 are attracted to demand that the previous leave of the Court was to be had before suing for removal of a Pujari and for recovery of possession of rooms which he had illegally occupied. The learned Counsel for the respondent placed before me a decision of the Supreme Court in A. I. R. 1967 SC1044. It was a case from Allahabad and there was a suit by an idol for a declaration of title and possession of property from a person in illegal possession. It was held herein that Section 92 was no bar to the main tainability of the suit and it was held herein that even a worshiper could sue when cause of action was due to the shebait acting adversely. A similar view was taken by the Supreme Court in another case from Allahabad as reported in A. I. R. 1974 S. C. 2141. It was a suit to remedy an infringement of an individual right and to vindicate a private right. It was out side the scope of Section 92 of the CPC. The plaint made it clear that a trus tee was not proposed to be removed, only the Pujari was sough to be removed as he was acting against the interest of the deity and no relief as envisaged in Section 92 was sought for. Accordingly, prior leave of the Court as thought of by Section 92 was not at all necessary. The first objection against the maintainability of the suit, therefore, must be ruled out.
(3.) THE next objection that was raised by Sri Tandon, relates to an interpretation of Section 14 of the U. P. Act No. 13 of 1972. THE law, as it stands, reads as follows: "14. Regularisation of occupation of exist ing tenants.-Notwithstanding anything con tained in this Act or any other law for the time being in force any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord imme diately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Let ting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of" such commen cement, shall be deemed to be an authorised licensee or tenant of such building. " Sri Tandon proposed to rely on the original text of Section 14 which did not qualify the term licensee by the Words "within the meaning of Section 2-A. " Sri Tandon submitted that under Section 14 the defendant No. 1 should have been treated as a tenant because he was not paid the remuneration of Rs. 40 per month and the same was adjusted towards the rent for the room he was occupying. This plea of fact, that the sum of Rs. 40 per month which was not paid to him was being utilised as rent, was never raised in the written statement or at any earlier point of time. A point of law dependent on certain facts which were never pleaded may not be allowed to be raised for the first time in second appeal. It was then alternatively argued by Sri Tendon that the room was left in his possession in lieu of services he used to render as Pujari and even under that interpretation he would be deemed to be a lessee under Section 105 of the Trans fer of Property Act. This plea again is dependent on certain factual plea which was not pleaded at all in the written state ment and it would be improper to allow the defendant to take up this plea at this be lated stage. THE third plea of Sri Tandon was that in any case the applicant was atleast a licensee in respect of the premises and he could have been evicted only by the authority empowered to remove a licensee and not by a Civil Court. He referred to Section 2-A of the U. P. Act No. 13 of 1972. Under sub-section (5) of this Section, if a licensee omits or refuses to vacate the building or part thereof after expiry of period of licence, the licensor could make an application to the Prescribed Authority for his eviction and the Prescribed Authority shall thereupon order his evic tion and such order shall be final. Such order is to be passed only after giving to the parties concerned a reasonable oppor tunity of being heard. Learned Counsel for the respondents submitted that Section 2-A made special provisions for short term licence and sub-section (5) spoke of vacation of premises by such licensees only and not by any licensee. It was contended that Section 14 also recognised regularisation of only such licensees as spoken of under Section 2-Aand not every other licensee. It was contended that Pujari was not a licen see covered by Section 2-A and so neither Section 14 nor sub-section (5) of Section 2-A would have applied to him. Sri Tandon lays stress upon certain case-laws on this point. The first one stands reported in 1992 (2) A. R. C. 311. It was a case where the Rent Control Evic tion Officer had declared that the tenancy of a particular person was regularised under Section 14 of the U. P. Act No. 13 of 1972. It was held that this action of the officer concerned was not sustainable in law as the law did not empower the said officer to make such a declaration. This case-law has no bearing on the point now involved. The other case law relied on by Sri Tandon stands reported in the same volume of ARC at Page 469. It was held herein that either for the licensee or for the tenant the test for regularisation is the occupation of the concerned building. In the case at our hand, certainly the occupa tion lay with the present defendant No. 1 but that alone was not sufficient to give a status of tenant to a person in occupation as a licensee. A licensee could get regularisation of his occupation as a licen see only and not as a tenant. The third case stands reported also in the same volume of ARC at Page 649. Here also it was held that the right under Section 14 of the U. P. Act No. 13 of 1972 arises from occupation. But this case-law also does not indicate, if, by mere occupation, a licensee could be come a tenant. Another case relied upon by the appellant sands reported in A. I. R. 1992 S. C. 1991. Here was a case of a tenant in uninterrupted occupation of the build ing with consent of the landlord from 1971 to 1982 and no suit or other proceeding for eviction was pending against him. It was held that the tenant is to be deemed to be an authorised tenant under Section 14.;