KAMADHENU CABLES Vs. MAHANTHARA MUTT TRUST

JUDGEMENT

(1.) IN both these Regular First Appeals the plaintiff is common in the Trial Court and the appellants were the defendants in each suit respectively. The suits filed by the plaintiff for ejectment of the defendants were decreed. Aggrieved by the same the defendants have filed these two appeals.

(2.) IT is the case of the defendants that plaintiff has no locus standi either to issue quit notice to terminate the tenancy or to institute the suits against the defendants for ejectment and other reliefs in respect of the suit schedule premises. It is further contended by the learned Sr. Counsel mr. V. Tarakaram, that since there is no resolution passed by the plaintiff trust for institution of suits against the defendants in respect of the suit schedule premises, the suits are liable to be dismissed as not maintainable in law Mr. V. Tarakaram, learned Senior Counsel for the defendants/appellants pointing-out the recitals of Ex. P-1 contends that it is not a Trust Deed. In support of his contention he has relied upon the decision reported in Rabindra N. Das v. Santosh kumar Mitra, AIR1975 Cal 381 wherein it is held as under:

(3.) REGARDING the maintainability of the suits, the defendants have not raised any plea in this regard before the Trial Court. Therefore, learned Counsel for the plaintiffs has rightly contended that it is not open for them to raise such a plea for the first time in the appeals in support of this legal contention he has placed reliance upon the decisions of the Apex Court reported in koopilan Uneen's Daughter Pathumma and Ors. v. Koopilan, AIR1981 sc 1683 , 1981 (3 )SCALE1240 , (1981 )3 SCC589 , [1982 ]1 SCR183 , 1981 (13 )UJ594 (SC ), bahrein Petroleum Co. Ltd. v. P. J. Pappu and Anr. , AIR1966 SC 634 , 1965 (0 )KLT1193 (SC ), (1966 )II LLJ144 SC , [1966 ]1 SCR461 The Special Secretary to government of Rajasthan, (Finance) Jaipur, Rajasthan and Ors. v. Vedakantara Venkataramana seshaiyer and Ors. , AIR1984 AP 5 , Hrishkesh Das v. Smt. Khantamani dasi and Ors. , AIR1959 Cal 257 The scope of the first appeal is to consider whether the judgment and decrees of the trial Court are legal, valid and perfect with reference to the pleadings and evidence on record. An issue not raised and could not be raised for want of pleadings of the defendants regarding the maintainability of the suits that the Trust deed is not registered and Trust is not created and resolution is not passed by the plaintiff Trust to issue quit notice and institute suit and therefore the same could not have been considered by the trial Court, hence the same cannot be entertained in these appeals particularly having regard to the undisputed fact that they have specifically admitted in thier replay notice, written statement and affidavits filed by way of evidence to the effect that they are the tenants under the plaintiff trust and they have been paying rents to it towards the suit schedule premises and therefore the defendants are estopped urging contrary legal contentions in these Appeals and this Court cannot consider the same in view of the decisions of the Apex Court and various High Court referred to supra upon which the learned Counsel for plaintiff has rightly placed reliance for not accepting the grounds by the Sr. Counsel on behalf of the defendants regarding the maintainability of suits, only the legality, validity and correctness of the judgments and decrees appealed as such, will have to be considered and not beyond that. Hence, the contention raised in this regard cannot be entertained.