Inayat Ullah v. Muzaffar Hussain — 1970 DIGILAW 179 (ALL)

ORDER S.N. Singh, J. - This is Defendant's appeal in a suit for ejectment and for payment of certain amount as mesne profits. 2. Plaintiff Respondent instituted the present suit on the allegation that he was the tenant of the accommodation in dispute which was the first and second floor of house No. 88/320, Nala Road, Kanpur. He alleged that he was in occupation of this accommodation on payment of a monthly rent of Rs. 25/-. The Defendant No. 1 Inayat Ullah was a co-worker along with Plaintiff Muzaffar Husain in Victoria Mills, Kanpur. Since the relations between the two were amicable Inayat Ullah was permitted to occupy a portion of the second floor as licensee for a period of two months since his wife was expecting a child. The case of the Plaintiff was that after the expiry of these two months the Plaintiff wanted to get back possession from Inayat Ullah in accordance with the terms of the agreement that he had made at the time of occupying the accommodation, but Inayat Ullah on one pretext or the other continued to occupy the accommodation since according to him he could not arrange for another suitable accommodation. It appears that during the period of his occupation in collusion with the landlord he managed to obtain an allotment order in his favour. When the Plaintiff was apprised of this fact he approached the RC and EO but to no effect. Consequently the present suit for the ejectment and mesne profits was filed in the civil court. 3. This suit was contested by Inayat Ullah who denied the alleged licence. He stated that Muzaffar Husain was not the tenant of the accommodation in the second floor. According to him Muzaffar Husain was a tenant only of two rooms in the first floor for which he used to pay Rs. 25/- per month. It was said that out of those two rooms he let out one to Inayat Ullah. According to him the landlord used to receive directly rent from him in pursuance of the agreement between the tenant and the landlord and Inayat Ullah. 25/- per month. It was said that out of those two rooms he let out one to Inayat Ullah. According to him the landlord used to receive directly rent from him in pursuance of the agreement between the tenant and the landlord and Inayat Ullah. He further alleged that Muzaffar Husain had forcibly turned him out of the room which had been given in his occupation by him and thereafter the landlord sympathised with him and allowed him to occupy the second floor which was in his (landlord's) occupation and thereafter he got that occupation regularised through the RC and EO by obtaining an allotment order in his favour. 4. The first court accepted the defence contention and dismissed the suit. On appeal the lower appellate court believed the Plaintiff's version and has decreed the suit. 5. The Defendant Inayat Ullah has come up in appeal to this Court. Sri Bashir Ahmad learned Counsel for the Appellant tried to assail the findings of fact recorded by the lower appellate court. After hearing the argument of the learned Counsel I am not satisfied that the finding of fact recorded by the lower appellate court is vitiated in law as such the finding of the lower appellate court accepting the Plaintiff's case in its entirety has to be accepted. 6. It was argued by Sri 'Bashir Ahmad that even accepting the findings of fact recorded by the lower appellate court the position was that the Plaintiff was the tenant in chief and Defendant No. 1 was a licensee in a portion of the accommodation in dispute. According to the learned Counsel as soon as the licence was granted to the Defendant the portion occupied by the licensee became vacant in the eye of law and it was amenable to allotment by the RC and EO. Learned Counsel supported his contention by relying on the cases of Mohd. Ishaq v. State Government of UP 1966 AWR 520 and Mohd. Shuaul Islam v. Rent Control and Eviction Officer 1968 AWR 141 , 7. I am not impressed with the argument of Sri Bashir Ahmad on this point. On the facts of this case it is clear that the Plaintiff, a tenant of the accommodation consisting of the first floor and the second floor permitted the Defendant No. 1 as a licensee to occupy the second floor merely out of compassion. I am not impressed with the argument of Sri Bashir Ahmad on this point. On the facts of this case it is clear that the Plaintiff, a tenant of the accommodation consisting of the first floor and the second floor permitted the Defendant No. 1 as a licensee to occupy the second floor merely out of compassion. This occupation bf the Defendant was as a licensee and it cannot be said that the Plaintiff who was the tenant lost control and possession over the accommodation in dispute. The accommodation which consisted of the first floor and the second floor was one. Merely because in a portion of the accommodation if a friend or co worker is allowed to occupy as a licensee it cannot be said that there occurred a vacancy so far as the accommodation or any portion thereof is concerned. 8. In Mohd. Ishaq v. State Government of UP 1968 AWR 520 it was held that "when a tenant-in-chief vacates an accommodation by sub letting it to another person, the DM has to pass an order u/s 7(2) of the Act to the owner to let it to another person, the owner being the landlord of the accommodation that has fallen vacant and not to the tenant-in-chief." This decision of the Full Bench is distinguishable and does not apply to the facts of this case. The ratio decidendi of this case is that on the accommodation falling vacant on illegal sub-letting by the tenant the direction to let out the accommodation is to be given to the landlord and net to the tenant-in-chief. In Mohd. Shuaul Islam v. Rent Control and Eviction Officer 1968 AWR 141 a learned Single Judge of this Court held that "when an owner or a tenant leaves an accommodation in the occupation of a person who continues to live and reside in it, even though without payment of any rent and without acquiring any interest in the property and then such person surrenders the possession or ceases to occupy it, a vacancy would be created in the same manner as the owner ceasing to occupy. In any event the phrase "in any other manner whatsoever" occurring in Section 7(1)(a) of the UP (Temp.) Control of Rent and Eviction Act, 1947 would cover the case of such a licensee." 9. This case is applicable to the peculiar facts of that case. In any event the phrase "in any other manner whatsoever" occurring in Section 7(1)(a) of the UP (Temp.) Control of Rent and Eviction Act, 1947 would cover the case of such a licensee." 9. This case is applicable to the peculiar facts of that case. It is also distinguishable from the present case. In case of an occupation by a licensee it cannot be said as a general proposition of law that the occupation of the licensee is an independent occupation and the licensor loses control over the portion over which the licensee enters into possession and vacancy arises as a matter of law. It will always depend on the facts of a particular case. For instance if there is an illegal sub letting that illegal sub letting is not contemplated by law and the possession of such an illegal sub tenant would be that of a licensee. In that contingency it may be said that on the induction of such a licensee vacancy has arisen but on the induction of a licensee as in the present case it cannot be said that by merely accommodating a friend the tenant lost control over the accommodation over which he was in legal possession. On the facts of the present case I am satisfied that there was no vacancy. Once it is accepted that there was no vacancy the RC and EO has no jurisdiction to allot the accommodation in favour of the Defendant. 10. It was argued by Sri Bashir Ahmad that the order of allotment passed by the RC and EO cannot be challenged in civil court specially when the tenant Plaintiff had opportunity to object before the RC and EO and he actually did contest the matter. It was argued that in the instant case the RG and EO has found that the accommodation in occupation of the tenant was surplus and the surplus accommodation which was given to the licensee could validly be the subject matter of allotment. Reliance was placed on a Supreme Court case in, Ram Swarup v. Shikar Chand 1966 AWR 77 wherein it was held that "the jurisdiction of the civil courts is excluded in relation to matters covered by the orders included within the provisions of Section 3(4) and Section 16 UP (Temp.) Control of Rent and Eviction Act. Reliance was placed on a Supreme Court case in, Ram Swarup v. Shikar Chand 1966 AWR 77 wherein it was held that "the jurisdiction of the civil courts is excluded in relation to matters covered by the orders included within the provisions of Section 3(4) and Section 16 UP (Temp.) Control of Rent and Eviction Act. But the bar created by the relevant provisions of the Act excluding the jurisdiction of the civil courts cannot operate in cases where the plea raised before the civil court goes to the root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity." This authority in my opinion instead of supporting the contention of the Appellant, supports the case of the Plaintiff Respondent. My attention was also drawn to a Supreme Court decision reported in Smt. Munni Devi v. Gokul Chand 1970 AWR 26. The Appellant Smt. Munni Devi in that case applied to the RC and EO for ejectment of the first Respondent Gokul Chand from the shop belonging to her on the ground of default in payment of rent. The RG and EO held that the shop was vacant on the evidence that the tenant was not in occupation and had let it out to one Alladia. The shop was allotted to one Kishorilal who applied to the RG and EO that the shop was in the illegal occupation of Rawal Chand, son of Gokul Chand. The RG and EO accepted it and issued a notice u/s 7-A(3) of the Act. The first Respondent Gokul Chand then filed a suit against Munni Devi and Kishori Lal. The trial Court made an order declaring that the first Respondent was an allottee and a tenant of the shop and that he was entitled to remain in occupation of the same. An appeal to the District Court and a second appeal to the High Court were dismissed, Munni Devi and Kishorilal appealed to the Supreme Court and contended that the order of the Civil Court was without jurisdictions the suit was not maintainable and that the order of the DM was final u/s 16 of the Act. An appeal to the District Court and a second appeal to the High Court were dismissed, Munni Devi and Kishorilal appealed to the Supreme Court and contended that the order of the Civil Court was without jurisdictions the suit was not maintainable and that the order of the DM was final u/s 16 of the Act. It was held "that the Legislature has invested the DM with power on the existence of a vacancy to allot the premises to another person, but the Legislature has not made the determination of the preliminary state of facts by the DM conclusive. The jurisdiction to pass an order is conclusive. The right of a tenant in possession is a valuable right and there is nothing in Section 7 or Section 7-A which confers jurisdiction upon the DM to conclusively determine the facts on the existence of which his jurisdiction arises. Undoubtedly he has jurisdiction to make orders Under Sections 7 and 7-A of the Act, if there be a vacancy. But whether there is a vacancy is a jurisdictional fact which could not be decided by him finally. By reaching an erroneous decision, he cannot clothe himself with jurisdiction which he does not possess. It is only when the order is within jurisdiction that the order is not liable to be challenged in a Civil Court by virtue of Section lb of the Act. In the present case, the Civil Court has come to the conclusion that Gokul Chand had never vacated the shop and no vacancy had occurred. By wrongly deciding that Gokal Chand had vacated the shop, the DM had no power to pass orders directing forcible ejectment and allotting the shop to another person." 11. In view of the above quoted authority it is clear that in a case where the RC and EO wrongly decides the question of vacancy it is open to the Civil Court to go into the question and decide it for itself and if on the decision of the Civil Court it is found that there was no vacancy the order of the RC and EO allotting the accommodation to the allottee cannot be upheld. In view of this Supreme Court case on the findings of fact recorded by the lower appellate court the allotment made in favour of Inyat Ullah was invalid and no right accrued to Inayat Ullah by virtue of the allotment order. The lower appellate court, having accepted the Plaintiff's case in its entirety was justified in decreeing the Plaintiff's suit. 12. There is no force in this appeal which is accordingly dismissed with costs. However, Inyat Ullah will be allowed three months time to vacate the accommodation in dispute provided he pays the entire amount due upto date and a sum of Rs. 39/- for use and occupation for these three months within a period of one month from today. In case of default the decree will be executable after a month.