MANAGING COMMITTEE OF T K GHOSES ACADEMY Vs. TRIPURARI CHARAN PALIT

JUDGEMENT

(1.) This is an application for grant of a certificate of fitness for appeal to the Supreme Court under Article 133(1)(a) and (b) of the Constitution. The dispute is between the defendants, Managing Committee, T.K. Ghosh Academy, Patna, and others, and the Palit family whose ancestors brought the school into existence. The case of the plaintiffs was that the school which was originally, no doubt, started by their ancestors in 1878 actually, was put under a trust which was created in 1950. In terms of the trust, the school authorities were liable to pay rental of Rs. 250/- per month, Reference was made to clauses 9 and 11 of the trust deed. The rent in question was not . paid and hence the present suit had to be instituted for recovery of rent. The amount claimed was a sum of Rs. 10,600/-. The defence was that the school was started in 1878 and continued to be in its present location all through and that the plaintiffs had no title to claim rent and that the defendants were entitled to occupy the building without having to pay any rent for it. The suit was decreed by the trial court. In appeal, however, to this Court the finding in regard to the construction of the trust deed and other matters was in favour of the plaintiffs but the suit was dismissed on the ground that notice under Section 106 of the Transfer of Property Act to be given by the landlord to the tenant before institution of a suit for eviction was not given in the present case, The petitioners are aggrieved lay the judgment of this Court in so far as the substantial finding in regard to the right of the plaintiffs to realise rent in terms of the trust deed is concerned.

(2.) Two questions have been raised by Mr. Prem Lall in support of the application. The first is that the value of the school building where the school is held together with the site on which it stands, admittedly, exceeds much more than Rs. 20,000/- and, the other, that the judgment of the High Court is a judgment of reversal in which it has been held that the suit of the plaintiffs has to be dismissed on account of a technical defect. Apparently, therefore, the appeal of the petitioners has been allowed but the petitioners are nevertheless not content with the judgment because they apprehend that the substantial finding in regard to the plaintiffs' right to claim rent and the consequent right to evict the defendants having been found in favour of the plaintiffs by this Court as well, the defendants have in substance been saddled with decree against them. The judgment of this Court, therefore, is one of reversal although on a technical point the suit has been dismissed. There was some argument before us at this stage as to the true nature of the judgment of reversal as contemplated under Article 133 of the Constitution and Sections 109 and 110 of the Code of Civil Procedure. In view of the Full Bench decision of this Court in Kanak Sunder Bibi v. Ram Lakhan Pandey on which reliance was placed by Mr. Prem Lall, Mr. K. D. Chatterji for the opposite party has conceded that the present judgment must be treated as a judgment of reversal.