Masuriya Din v. Geeta Malaviya — 1981 DIGILAW 702 (ALL)

JUDGMENT A.N. Varma, J. - This second appeal by a defendant arises out of a suit No. 762 of 1975 filed by Shrimati Geeta Malviya, the plaintiff-respondent for a declaration that the plaintiff is the owner of the house in suit, namely, numbered 1015-A Daryabad, Allahabad, and for the ejectment of Masuriya Din from that house. The suit was tried and consolidated along with another Suit No. 224 of 1975 which was filed by Masuriya Din (the appellant in this Second Appeal) against the plaintiff-respondent and one Brij Behari Shukla in respect of the same house for injunction restraining the defendants of Suit No. 224 of 1975 from interfering with the possession of Masuriya Din over the house. By a judgment, Suit No. 224 of 1975 was decreed. An injunction was issued directing the defendants of that suit not to eject Masuriya Din from the said house otherwise than in accordance with law. By the same judgment Suit No. 762 of 1975 was partially decreed. Srimati Geeta Malviya was declared owner of that house. The other relief, namely, ejectment was, however, refused. 2. Aggrieved by the aforesaid decrees three appeals were filed, Civil Appeal No. 165 of 1978 was filed by Shrimati Geeta Malviya against the decree passed in favour of Sri Masuriya Din in Suit No. 224 of 1975. Civil Ap peal No. 164 of 1978 was filed by Shrimati Geeta Malviya against that part of the decree of the trial court in Suit No. 762 of 1975 by which her remaining claim was dismissed, while Civil Appeal No. 152 of 1978 was filed by Masuria Din against that part of the decree of the trial court in Suit No. 762 of 1975 by which Shrimati Geeta Malviya was declared the owner. By a judgment dated 1st June 1979, Civil Appeal No. 165 of 1978 filed by Shrimati Geeta Malviya was allowed and her suit for ejectment of Masuriya Din was also decreed. The appellate court while allowing the appeal and decreeing the suit declared that the allotment order dated 15-12-1973 passed in favour of Masuriya Din was illegal, ineffectual in law and without jurisdiction. The decree passed by the trial court declaring Shrimati Geeta Malviya as the owner of the house was also affirmed. 3. The appellate court while allowing the appeal and decreeing the suit declared that the allotment order dated 15-12-1973 passed in favour of Masuriya Din was illegal, ineffectual in law and without jurisdiction. The decree passed by the trial court declaring Shrimati Geeta Malviya as the owner of the house was also affirmed. 3. By another judgment delivered the same day, Civil Appeal No. 152 of 1978 filed by Masuriya Din was dismissed and the decree passed by the trial court declaring Shrimati Geeta Malviya as the owner of the house was affirmed. 4. By a third judgment, also delivered on 1-6-1979, Civil Appeal No. 164 of 1978 was allowed and the suit of Masuriya Din being Suit No. 224 of 1975 was dismissed. It is not disputed that no second appeal was filed against this judgment of the lower appellate court dismissing Suit No. 224 of 1975. The said judgment is between the parties and has become final. The certified copy of this judgment was permitted to be brought on the record of this second appeal by my order dated 28-7-1981 and the same is marked Annexure "HC 3". 5. From a perusal of the pleadings of the parties in the two suits, it is clear that what was the plaint case of Masuriya Din in Suit No, 224 of 1975 was his defence in Suit No. 762 of 1975. The same is true of the stand taken by Shrimati Geeta Malviya in the two suits. 6. Shortly, stated, the plaintiff's case in Suit No. 762 of 1975 was that the plaintiff Shrimati Geeta Malviya was the owner of the house, having purchased the same from its original owner under a registered sale deed. Masuriya Din had illegally occupied the house in dispute and he was liable to be ejected therefrom. 7. The defence of Masuriya Din in that suit was that Shrimati Geeta Malviya was not the owner of the house. The sale deed upon which she founded her claim was fraudulent and no right had accrued in her favour under that, deed. Masuriya Din, on the other hand, was in occupation in pursuance of a valid order of allotment issued by the Rent Control authorities. He was, therefore, not liable to be ejected from the house in question. 8. The trial court decreed the suit in a part as mentioned above. Masuriya Din, on the other hand, was in occupation in pursuance of a valid order of allotment issued by the Rent Control authorities. He was, therefore, not liable to be ejected from the house in question. 8. The trial court decreed the suit in a part as mentioned above. The appellate Court on appeal decreed the suit filed by Shrimati Geeta Malviya in toto. The lower appellate court has held that the order of allotment passed in favour of Masuriya Din is clearly null and void, as there was no vacancy at the relevant time which might have authorised the Rent Control authorities to allot the accommodation in dispute to Masuria Din. On the finding therefore, that Shrimati Geeta Malviya was the owner of the house in suit, and that the appellant Masuriya Din was not entitled to remain in possession over the house, the order of allotment passed in his favour being void and ineffective in law, the suit of Shrimati Geeta Malviya for the ejectment of the appellant has been decreed. It is relevant to mention here that the decree passed against Masuria Din in Suit No. 224 of 1975 as well as in Civil Appeal No. 152 of 1978 holding Srimati Geeta Malviya to be the owner of the house in suit has become final. 9. The only question, therefore, which remains to be considered is whether the plaintiff-appellant is liable to be evicted from the house in suit. In his defence against the claim of the plaintiff to eject the appellant from the house in suit, the appellant. Masuria Din relied solely on the order of allotment dated 15-12- 1973 issued by the Rent Control & Eviction Officer. In regard to this order of allotment, the finding of the lower appellate court is that the same was invalid and inoperative in law as there was legally no vacancy in the house in suit at the relevant time. The lower appellate court has placed reliance on a Supreme Court decision reported in 1970 All LJ 1066: ( AIR 1970 SC 1727 ) in taking the view that the existence of vacancy being a condition precedent to the power vested in the Rent Control authorities to allot an accommodation. The lower appellate court has placed reliance on a Supreme Court decision reported in 1970 All LJ 1066: ( AIR 1970 SC 1727 ) in taking the view that the existence of vacancy being a condition precedent to the power vested in the Rent Control authorities to allot an accommodation. the order of allotment in favour of the appellant Masuria Din, was clearly ineffectual in law as there was no vacancy on the dates on which the order of allotment was passed in favour of the appellant. The lower appellate court went into the question of vacancy and held that the accommodation was not vacant at the relevant time. The lower appellate court rightly observed that the question whether there was a vacancy or not being a matter relating to the jurisdiction of the Rent Control authorities to allot the accommodation, it was open to the court to go into that question with a view to finding out whether the condition precedent for the exercise of power to allot, existed. 10. Learned counsel for the appellant vehemently contended that the order of allotment was subjected to an appeal under Section 18 of U. P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972, and that the appeal, though filed by a third party, having been dismissed, it was not open to the court to consider the question whether the order of allotment dated 15-12-1973 was illegal or not. I find no substance in this argument and if there was no vacancy, the order of allotment passed in his favour was wholly void and in- effectual in law. The affirmance of the order in appeal could not infuse life into that order. Where an order is challenged as being totally ultra vires on the ground of being beyond the jurisdiction of the authority purporting to pass that order, the affirmance of that order in appeal would not affect the inherent invalidity or nullity of the order. The submission advanced by the learned counsel for the appellant thus fails. The finding of the lower appellate court, therefore, that the order of allotment was null and void cannot be said to be vitiated by any error of law. On the said finding, the suit of the plaintiff-respondent for the ejectment of the petitioner was rightly decreed. 11. There is however a more fundamental obstacle in the way of the appellant. The finding of the lower appellate court, therefore, that the order of allotment was null and void cannot be said to be vitiated by any error of law. On the said finding, the suit of the plaintiff-respondent for the ejectment of the petitioner was rightly decreed. 11. There is however a more fundamental obstacle in the way of the appellant. The decree passed in Suit No. 224 of 1975 dismissing the suit of the appellant for injunction has admittedly become final. From a perusal of the pleadings of the parties in that suit, it is clear that the decree passed in that suit would operate as res judicata against the appellant. In that suit. the principal question which arose for determination was the same which is involved in the present second appeal. The matter in issue in Suit No. 224 of 1975 which directly and substantially arose for consideration was whether the order of allotment passed in favour of Masuriya Din was valid. The lower appellate court in Civil Appeal No. 164 of 1978 observed thus :- "Main point to be decided is whether at the time of allotment, the accommodation in suit was vacant. If it is decided that the accommodation in suit was vacant then in that case allotment order will be valid. If it is decided that at the time of allotment, accommodation in suit was not vacant, then allotment will be invalid." 12. It would thus seen that the question whether the allotment order was valid or not has already been finally determined between the parties by the lower appellate court in Civil Appeal No. 164 of 1978, and consequently, it is not open to the appellant to agitate the said issue. Confronted with the decision of the lower appellate court in Civil Appeal No. 164 of 1978, learned counsel submitted that there was no specific issue in Suit No. 224 of 1975 as regards the validity of the order of allotment passed in favour of the appellant. He argued that, three issues were framed in that suit, none of which mentioned anything about the validity of the order of allotment. The submission is misconceived. In the first place, the second issue; namely. "Whether the plaintiff is entitled to injunction sought for" directly covered the matter in issue as the very basis of the claim of the plaintiff in that suit was the order of allotment. The submission is misconceived. In the first place, the second issue; namely. "Whether the plaintiff is entitled to injunction sought for" directly covered the matter in issue as the very basis of the claim of the plaintiff in that suit was the order of allotment. Secondly, Section 11 of the Civil P. C. speaks of matter in issue and not specific issue framed in the suit. There is. as already mentioned, no manner of doubt that the validity of the order of allotment was a matter which was directly and substantially in issue in Suit No. 224 of 1975. The decree passed against the appellant would therefore operate as res judicata. 13. Thus in either view of the matter, this second appeal is liable to he dismissed. 14. In the result, the second appeal fails and is dismissed. There will be no order as to costs. 15. The appellant is, however, granted three months' time to vacate the accommodation in dispute. He will hand over vacant possession of the accommodation in dispute to the plaintiff- respondent within this period.