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PETITIONER: SANTOKH SINGH AND ANR.

       Vs.

RESPONDENT: MAHANT IQBAL SINGH

DATE OF JUDGMENT:       12/09/2000

BENCH: V. N. Khare  J. & S. N. Variava  J.

JUDGMENT:

J U D G M E NT

S. N. Variava, J.

L...I...T.......T.......T.......T.......T.......T.......T.......J

   This  Appeal  is  against the Judgment dated  29th  December, 1989,  by  which Letters Patent Appeal No.  299 of 1984 filed  by the  Appellant  herein  has been dismissed.  Briefly  stated  the facts are as follows :

   The  Appellant claims to be a lessee under a Lease Deed dated 3rd August, 1960, executed by one Mahant Mahal Singh in favour of the  Appellant for a period of 99 years at an annual rent of  Rs. 43/-.   The Respondent claiming to be the Mahant filed a suit for recovery of possession on the basis that the property was a Trust property  and  that Mahant Mahal Singh had no authority to  lease out  the  property.  It was also claimed that the lease deed  was executed  without  any consideration and/or legal  necessity  and therefore,  the lease was void and not binding on the Trust.   It was  claimed  that  the Trust was entitled to possession  of  the property.   On the basis of pleadings the Trial Court inter  alia framed the following issues :

   "1.  Whether the suit does not lie in the present form?

   2.   Whether  the  plaintiff has a locus-standi to  file  the present suit?

   3.   Whether  the  lease  in  question  was  made  for  legal necessity and for consideration and as an act of good management?

   4.   Whether  the Mahant was competent to make the  lease  in question in favour of defendants Nos.  1 and 2?

   5.   Whether  the  defendants  Nos.  1 and 2  have  made  any improvement in the suit property?  If so, to what amount they are entitled?

   6.  Whether the property in suit belongs to Dharamsala Partap Singh?"

   The  Trial Court dismissed the suit on 10th of October, 1974. The Respondent filed a First Appeal.  This was allowed on 19th of December,  1983.  In this judgment it was held that the  property was  Trust  property.  It is held that the lease in question  was without  consideration and not made for legal necessity.  It  was

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held  that Mahant Mahal Singh was of old age and had become  very weak  and generally remained ill.  It was held that Mahant  Mahal Singh was not competent to make lease in favour of the Appellant. However,  the  Appellants were granted a sum of  Rs.20,970/-,  as cost of the improvements made by them.  Against this judgment the Appellants  filed  the  above mentioned L.P.A., which  as  stated above,  was  dismissed  by  the   impugned  judgment  dated  29th December,  1989.   We  have heard both sides.  We have  read  the relevant  papers and all the judgments.  On the questions whether the  property belonged to a Trust of which the Respondent was the Mahant,  on  a correct appreciation of evidence both  the  Courts below  have  given concurrent finding of fact that this  property was  Trust  property and that the Respondent was a Mahant of  the Trust.   Similarly,  on  the question whether the lease  was  for consideration  and for legal necessity, on a correct appreciation of  evidence, both these courts have given concurrent finding  of fact  that  the  lease  was not for consideration  or  for  legal necessity.  These being the concurrent findings of fact could not be  seriously assailed before us.  However, it has been seriously contended  that  the  Lease Deed of 3rd of August,  1960,  was  a registered  document  and  that  the Appellant had  been  put  in possession  under that document.  It was submitted that the  suit was a mere suit for possession.  It is pointed out that there was no  prayer  for  a declaration that the Lease  Deed  was  invalid and/or  void  and/or  not binding.  It is submitted that  in  the absence  of  such a prayer the suit was not maintainable.  It  is submitted  that  both the Courts below erred in holding that  the suit  was  maintainable in the present form.  It is correct  that such  a  declaration  should have been sought.  Normally  in  the absence  of  such  a  declaration  such   a  suit  would  not  be maintainable.   However,  in this case we find that  even  though there  was  no prayer to the effect that the Lease Deed  was  not valid and/or void and/or are not binding, the necessary averments are there in the plaint.  The Appellants thus knew that the lease deed  was  being  challenged.  They met the  challenge  in  their written  statement.  Thereafter Issues namely, Issues Nos.  4 & 5 had  been  framed.   Evidence  was led by the  parties  on  those Issues.   Arguments  were advanced on those  Issues.   Therefore, this question has been agitated by the parties in all the Courts. Thus  even  though there was no formal prayer was asked  for,  no prejudice  has  been caused to the Appellants inasmuch as he  has not  been prevented from leading evidence on this aspect and  has not  been precluded from raising contentions in this behalf.   In our  view,  all  that  was necessary to cure the  defect  was  an amendment by incorporating one prayer.  This could have been done at  any  stage.  In this view of the matter and  particularly  in view  of the fact that we are in agreement with the findings that the  property is a Trust property and that the lease in  question was  not  for  consideration or for legal necessity,  we  see  no reason  to  interfere.  Accordingly the Appeal stands  dismissed. There will, however, be no order as to costs.