Kanhaiya Lal v. Asha Rani — 1987 DIGILAW 559 (ALL)

JUDGMENT A.N. Dikshit, J. - This Second Appeal has been filed by the appellant against the judgement and decree dated 2.6.1975 passed by Sri G.K. Verma, Civil Judge, Agra, dismissing Civil Appeal No. 319 of 1972 which was preferred against the judgment and decree dated 28.10.1973 decreeing suit No. 742 of 1968 of the plaintiffs for possession after the ejectment of the defendant-appellant. 2. The respondents filed the suit for possession of the suit premises after the ejectment of the appellants and for recovery of arrears of rent and mesne profits on the allegation that they are owners of the property bearing Municipal No. 17/122 situated at Seo Ka Bazar, Agra, a portion whereof was in occupation of one Baijnath father of Kanhaiya Lal who had filed the appeal and on his death his legal representatives were brought on record. Baijnath was a tenant of a portion comprising of a shop and a room above it on a monthly rental of Rs. 100/-. As Baijnath fell in arrears of rent it was alleged that he is a defaulter within the meaning of section 3(1)(a) of U.P. Act III of 1947. It was further alleged that the tenant had changed the purpose of the tenancy for which it was let out and had also damaged the property and caused material alterations in the property. A notice of demand and to quit was sent by the landlords which was served upon Baijnath on 13.6.1967. After the service of the notice was effected on Baijnath he expired on 29.6.67. It was alleged that the tenancy of Baijnath had been determined during his life time and such tenancy did not devolve upon his heirs and more so when the tenancy in favour of Baijnath was a tenancy at will. A fresh contract of tenancy in respect of certain other portions was arrived at between the landlords and the other heirs of Baijnath. However, no contract of tenancy was ever executed between the landlords and Kanhaiya Lal (appellant). It was thus alleged that the heirs of Kanhaiya Lal were in wrongful occupation of the portion detailed at item No. 1 of the plaint. In spite of the notice which was served on 13.6.1967 on Baijnath and in view of another notice dated 3.4.1968 requiring the appellant (defendant) to vacate the possession of the accommodation it is being continued in an unauthorised manner. In spite of the notice which was served on 13.6.1967 on Baijnath and in view of another notice dated 3.4.1968 requiring the appellant (defendant) to vacate the possession of the accommodation it is being continued in an unauthorised manner. A decree for dispossession of the appellant and for the recovery of Rs 770/- as mesne profits with effect from 15.6.1967 along with pendente lite and future mesne profits at the rate of Rs. 60/- per month was claimed. 3. The suit was contested by the appellant. The ownership of the suit premises is admitted to the appellant. It was alleged that one Bisheshwar Nath was the tenant of the entire accommodation and after his death Baijnath continued to occupy the premises and the business in partnership in which the appellant was also a partner. It was, however, admitted that the rent of the suit premises was paid by Baijnath. After the respondents purchased the premises the rent of the accommodation was enhanced to Rs. 160/- inclusive of Bhumi Bhawan Kar. The partnership business was, however, dissolved by an inter se arrangement between the appellant and his father. On the basis of this arrangement the appellant occupied a basis of this arrangement the appellant occupied a hall on the first floor, a staircase, Varandah, courtyard, Dalan and entire second floor without any objections from any side. Baijnath retained with him the shop on the ground floor with a room thereon and a godown and he continued paying rent at the rate of Rs. 100/- per month. Another plea that the suit is bad for non joinder of necessary parties for having not impleaded all the heirs of Baijnath was raised. It was stated that the respondents were aware about the private arrangement between Kanhaiya Lal defendant and his father. As regards the notice of demand and determination of tenancy the appellant alleged that it stood waived in view of the payment of the entire arrears. It was also stated by the appellant that the relations with the other Heirs of Baijnath were strained and the respondents are taking advantage of this fact. Some secret underhand dealing was also alleged between the other heirs of Baijnath and the respondents. The legality of the notice was also challenged. 4. On the pleadings of the parties the trial Court framed the following issues :- 1. Some secret underhand dealing was also alleged between the other heirs of Baijnath and the respondents. The legality of the notice was also challenged. 4. On the pleadings of the parties the trial Court framed the following issues :- 1. Whether the tenancy of Sri Baijnath had been terminated in his life time? If so, whether the tenancy of late Baijnath was not heritable? Was the tenancy of Baijnath at will ? Its effect ? 2. Whether the defendant is liable to ejectment on the grounds mentioned in para 5 of the plaint ? 3. Whether the plaintiff split up the tenancy by entering into a contract of tenancy afresh with other heirs of L. Baijnath excluding the defendant ? 4. Whether defendant alone became the tenancy of the plaintiff by operation of law ? 5. Whether the notice dated 12.6.67 was illegal and invalid ? 6. Whether the notice to quit stood waived by the plaintiff ? 7. Whether the suit is bad for non-joinder of other heirs of the deceased Sri Baijnath ? 8. Whether the plaintiffs have obtained possession of a godown out of the portion in original tenancy ? If so, its effect ? 9. Whether the defendant has carried out any repairs ? If so, of what amount ? 10. Whether the defendant is entitled to adjustment of the amount of repairs and the amount of house tax and water rate ? If so to what extent? 11. Whether the plaintiffs are entitled to mesne profits ? If so, at what rate ? 12. To what relief and amount, if any, are the plaintiffs entitled ? 13. (a) Whether the suit is undervalued ? (b) Whether the court fee paid is insufficient ? 14. Whether the allotment order dated 1.7.68 in favour of the defendant in respect of the property in suit is void, illegal and invalid ? Its effect ? 5. The suit was earlier decreed but on an appeal during which an amendment application was filed the same was remanded for de novo trial. Issue No. 14 was framed on the pleadings of the parties after the remand. 6. It was alleged that the occupation of the appellant was authorised in view of the accommodation having been allotted in favour of Kanhaiya Lal on 9.7.1968 and which order was also confirmed by the State Government on 28.9.1970. Issue No. 14 was framed on the pleadings of the parties after the remand. 6. It was alleged that the occupation of the appellant was authorised in view of the accommodation having been allotted in favour of Kanhaiya Lal on 9.7.1968 and which order was also confirmed by the State Government on 28.9.1970. In view of the allotment order his occupation was not unauthorised. After the allotment no rent was agreed nor was fixed. It was also pleaded on behalf of the respondents that the order of allotment in favour of Kailash Nath and Kedar Nath does not amount to waiver of the notice as has been erroneously pleaded by the appellant. The validity of the allotment order was challenged by the also respondents. 7. The trial court on the basis of the material on record and the evidence adduced by the parties decreed the suit vide its judgment and decree dated 28.10.1972 holding that the notice determining the tenancy of Baijnath was valid : that the appellant would be deemed to be defaulter within the meaning of section 3(10)(a) of U.P. Act III of 1947, that the notice had not been waived, and that the allotment order passed in favour of Kanhaiya Lal was illegal, in valid and inoperative. 8. Aggrieved the appellant preferred Civil Appeal No. 379 of 1972 against the judgement and decree dated 28.10.1972, passed by the then Second Additional Munsif, Agra decreeing the plaintiffs & suit for possession and arrears of rent etc. The lower appellate court on the basis of the pleadings of the parties framed the following issues for consideration : 1. Whether Lala Baijnath alone was not the tenant in the accommodation and whether the suit is bad for non-joinder of necessary parties ? 2. Whether the notice relied on by the plaintiffs is invalid and whether it has been waived? 3. What is the effect of the allotment order in favour of the defendant-appellant on this proceeding? 4. Whether Baijnath was not liable to ejectment on the basis of the notice served by the plaintiffs? 5. Whether the provisions of U.P. Act No. XIII of 1972 protect the defendant-appellant from eviction from the premises in suit ? 9. 3. What is the effect of the allotment order in favour of the defendant-appellant on this proceeding? 4. Whether Baijnath was not liable to ejectment on the basis of the notice served by the plaintiffs? 5. Whether the provisions of U.P. Act No. XIII of 1972 protect the defendant-appellant from eviction from the premises in suit ? 9. The lower appellate court dismissed the appeal holding that even if the rent note is not admissible as evidence of creation of a lease it can be looked into for collateral purposes : that Baijnath alone was the tenant of the accommodation in question and the suit cannot be held to be bad for non-joinder of the widow of Lala Bisheswar Nath nor all the other heirs of Baijnath, that Baijnath was a tenant from month to month and not a tenant at will, that the tenancy of Baijnath as well as his heirs came to an end on 12.7.1967; that Baijnath as well as his legal heirs had failed to pay the arrears of rent within the statutory period and so the protection afforded by the statute is not available to them; that the notice was valid and legal and was not waived; that the tenant had been in arrears of rent for more than 3 months and having failed to make the payment was liable to ejectment on the basis of the default, that the deposit made under section 20 (4) of the U.P. Act 13 of 1972 would be of no avail nor any benefit could be given and that the allotment order was illegal and in any case does not regularise the possession. 10. On the dismissal of the appeal by the lower appellate court the appellant has preferred this second appeal. 11. Learned counsel for the parties have been heard. 12. Learned counsel for the appellant has submitted that the notice terminating the tenancy of Lala Baijnath was invalid and illegal on the ground that the deceased tenant Lala Baijnath was not a defaulter in payment of rent within the meaning of section 3(1)(a) of U.P. Act No. III of 1947 (hereinafter called the Act). Admittedly the notice terminating the tenancy was sent to Lala Baijnath on 12.6.1967 and was served on him on 13.6.1967. There is no dispute that the deceased Lala Baijnath was in arrears of rent with effect from 1.3.1966 to 31.5.1967. Admittedly the notice terminating the tenancy was sent to Lala Baijnath on 12.6.1967 and was served on him on 13.6.1967. There is no dispute that the deceased Lala Baijnath was in arrears of rent with effect from 1.3.1966 to 31.5.1967. It would thus clearly show that the deceased Lala Baijnath was in arrears of rent for a period of 15 months. Lala Baijnath expired on 29.5.1967. It has been submitted though subduedly that the rent had been paid in between 13th June and 29th June, 1967 by Lala Baijnath. The trial court on the basis of the material on record and the necessary evidence adduced on behalf of the parties found that the appellant had not pleaded about the payment of the arrears of rent in the written statement. It was further found that there is no evidence on record to the effect that such rent was paid by Lala Baijnath. Further no rent receipts were filed so as to indicate that the rent for the period claimed in the notice i.e. from 1.3.1966 to 31.5.1967, was paid. It is thus clear that no such document evidencing payment of rent for the defaulted period was ever produced before the trial court which rightly came to the conclusion that the tenant was in arrears of rent and would thus be deemed to be a defaulter within the meaning of section 3(1)(a) of the Act. It was also found by the trial court that the heirs of the deceased tenant on whom the tenancy rights devolved after the death of Lala Baijnath did not pay the rent. The protection afforded to a tenant from eviction under the statute would thus stand removed and the tenant would be liable to ejectment from the suit accommodation. Another aspect which is of equal significance in the instant case is that in the appeal against the judgment and decree of the trial court the appellant had nowhere pleaded that there was no default in the payment of rent and the bar for the eviction of the tenant was thus not removed as provided under section 3(1)(a) of the Act. The lower appellate court before whom such a challenge was not made accepted such finding recorded by the trial court that the tenant had committed default in payment of rent within the meaning of section 3(1)(a) of the Act and was liable to eviction. The lower appellate court before whom such a challenge was not made accepted such finding recorded by the trial court that the tenant had committed default in payment of rent within the meaning of section 3(1)(a) of the Act and was liable to eviction. While deciding issue No. 2 regarding default the trial court, as indicated above, found that a default in the payment of rent had been committed by the appellant. Such a finding of fact recorded by the trial court and not challenged before the lower appellate court would not permit the appellant to raise this plea before this Court. It is thus clear that a default in the payment of rent had been committed by the appellant within the meaning of section 3(1)(a) of the Act and he was thus liable to eviction. 13. Learned counsel for the appellant has submitted that no default would be deemed to have been committed as after the death of Lala Baijnath another part of the tenanted accommodation had been given on rent to Kedar Nath. This submission is again without any merit. This is not disputed that the entire tenanted accommodation which was in occupation of Lala Baijnath continued to be in his possession and occupation till the time of his death. The default in the payment of rent had been committed by Lala Baijnath for not having paid the rent for the period from 1.3 1966 to 31.5.1967. It is in respect of this period of rent which having not been paid by Lala Baijnath that a default within the meaning of section 3(l)(a) of the Act was committed inviting the eviction of the tenant. Moreover no such plea can be raised at this stage when the trial court found the tenant having committed default in the payment of rent for the period for which the notice was sent to the tenant Lala Baijnath and was served on him on 13.6.1967. Such a plea at this stage would be of no avail to the appellant and the finding of the trial court that a default had been committed will have to be accepted particularly when such a finding was not challenged before the lower appellate court. 14. Such a plea at this stage would be of no avail to the appellant and the finding of the trial court that a default had been committed will have to be accepted particularly when such a finding was not challenged before the lower appellate court. 14. Learned counsel for the appellant then urged that the notice terminating the tenancy of Lala Baijnath which was served on him on 13.6.1967 would not be deemed to be a valid notice as enjoined under section 106 of the Transfer of Property Act. Curiously nothing has been shown to indicate as to how the notice is either invalid or is otherwise illegal. Learned counsel has failed to show as to how the notice did not legally terminate the tenancy of the tenant. The trial court as well as the lower appellate court have found that Lala Baijnath alone was the tenant of the portion in question. The composite notice of demand and to quit the accommodation was served on 13.6.1967 well within the life time of the tenant Lala Baijnath. Lala Baijnath expired on 29.6.1967. On his death the tenancy devolved on his heirs including the appellant. It is also not in dispute that when the notice was served on the tenant Lala Baijnath on 13.6.1967 he was in arrears of rent for more than 15 months and this has been found as such by the trial court and not assailed or challenged before the lower appellate court. The notice clearly indicated that on the expiry of thirty days the tenancy shall stand determined. It was open to the heirs of the deceased tenant to have paid the rent by 12.7.1967, the day on which the period provided in the notice was expiring. No effort was made by the heirs of the deceased tenant to pay the rent Both the courts below have found that Lala Baijnath alone was the tenant of the suit portion. The tenancy having devolved on the heirs of Lala Baijnath it cannot be accepted that the notice was not rightly addressed or served on the tenant. As the demand for the payment of rent was found to be legal in view of the fact that the tenant had committed default in the payment of rent for a period of more than 15 months, it is clear that the notice was valid and legal. 15. As the demand for the payment of rent was found to be legal in view of the fact that the tenant had committed default in the payment of rent for a period of more than 15 months, it is clear that the notice was valid and legal. 15. Learned counsel for the appellant has tried to establish that the tenancy cannot be terminated piecemeal and the notice should have terminated the tenancy of the entire portion of which Lala Baijnath was the tenant. The submission is again wholly ill-merited. The notice was given to Lala Baijnath in respect of the entire tenanted portion which was in his occupation and possession. It thus cannot be said that the notice terminated the tenancy only of a part and not that of the whole portion. It would thus be clear that the notice terminating the tenancy of Lala Baijnath was served on him for the entire tenanted accommodation in his tenancy and occupation. 16. Learned counsel for the appellant then submitted that the respondents sent another notice which was served on the heirs of the deceased tenant on 3.4.1968 and as such the notice which was served earlier on Lala Baijnath on 13.6.1967 stood waived. The trial court as well as the lower appellate court have found that the landlords had never accepted the heirs of the deceased tenant as their tenants nor did they ever give out that the tenancy was subsisting. The plea that the notice served on Lala Baijnath stood waived is thus apparently unsustainable. Further it has been found by the courts below that the arrears of rent for the defaulted period was never paid to the respondents and as such it cannot be said that the notice which was served on Lala Baijnath on 13.6.1967 stood waived. Both the courts below have found that Kedar Nath and Kailash Chand were granted fresh contract of tenancy and the accommodation in their possession and occupation was an independent and distinct tenatment. Further the notice dated 3.4.1968 was to the effect that the heirs of the deceased tenant were trespassers. It is thus clear that the notice dated 12.6.1967 which was served on the tenant Lala Baijnath on 13.6.1967 did not stand waived. 17. A notice terminating the tenancy within the meaning of section 106 of the Transfer of Property Act was served on Lala Baijnath on 13.6.67. It is thus clear that the notice dated 12.6.1967 which was served on the tenant Lala Baijnath on 13.6.1967 did not stand waived. 17. A notice terminating the tenancy within the meaning of section 106 of the Transfer of Property Act was served on Lala Baijnath on 13.6.67. The receipt of this notice is admitted. However, there is no averment in the written statement specifically denying these facts. Neither the invalidity nor the illegality of the notice has been shown by the learned counsel for the appellant except mere pleading that the notice is illegal and invalid and it does not legally terminate the tenancy. The allegations of fact required a specific denial and in the absence thereof the allegations of the plaint would be deemed to have been admitted as has been found by a Division Bench of this Court in the case of Misri Lal v. Bhagwati Prasad, 1955 A.L.J. 741. Further the notice which was served on Lala Baijnath clearly stated that the tenancy shall stand terminated on the expiry of 30 days of the notice. If such a period as provided under law has been mentioned in the notice it would be clear that the notice was valid and legal. It was open to the appellant to have pleaded and proved the nature of the illegality or the invalidity of the notice, but once it has not been done it would be clear that the notice is wholly legal and absolutely valid. In the case of Jagdish Prasad v. IV Addl. District Judge. Etah and others, 1984 (1) A.R.C. 26, it has been held that Rule 4 Order 12, C P.C. inter alia provides that where a defendant denies allegation of fact in the plaint he must not do so evasively but answer the point of substance. If it was the case of the tenant that the notice was in any way illegal or invalid it was for him to plead and prove the nature of the illegality or invalidity. In the case of Mani Ram Tiwari v. Babu Ram Dixit, AIR 1979 Allahabad 144 it was held that where the tenant admitted receipt of notice of termination of tenancy but alleged that the notice was bad in law; the burden lay on the tenant to prove the invalidity of the notice. In the case of Mani Ram Tiwari v. Babu Ram Dixit, AIR 1979 Allahabad 144 it was held that where the tenant admitted receipt of notice of termination of tenancy but alleged that the notice was bad in law; the burden lay on the tenant to prove the invalidity of the notice. In the case of Smt. Lachmin Devi alias Gillo v. Lakshi Ratan Cotton Mills Co. Ltd. and others, 1984 (1) A.R.C. 632 it has been held that it is settled that the defendant who challenges the notice under section 106. Transfer of Property Act, as invalid, has to establish the ground for the said challenge. The challenge must be substantial and not groundless. 18. In Smt. Sushila Devi and another v. Manoher Lal, 1985 (1) A.R.C. 34 it has been held that a notice stating rate of rent period of arrears, demanding total amount of arrears of rent and asking the tenant to pay it within one month from the date of receipt of notice and thereafter stating that in case of default in payment the tenant should vacate the premises would he a valid one. Such a view was also taken in Suhail Ahmad v. 3rd Addl. District Judge, Aligarh and others, 1986 (1) A.R.C. 23 where the notice stating the period of arrears of rent, deeming the tenant to be a defaulter and determining that the tenancy has been held to be a valid notice. 19. In Jafar Ali v. Smt. Raj Rani, 1986 (1) A.R.C. 326 it has been held that the finding that the tenant had not paid the arrears of rent notwithstanding the service of notice is a finding of fact based on appraisal of evidence. It has further been held in the case that where a vague allegation was made in the written statement that the notice was illegal or invalid but on a perusal of the notice the courts below found the notice to be valid and legal, the mere vague allegation in the written statement did not render the notice invalid or illegal. 20. In view of the above discussion it is abundantly clear that the notice was valid and legal in the instant case before me as has been found by the courts below. 21. 20. In view of the above discussion it is abundantly clear that the notice was valid and legal in the instant case before me as has been found by the courts below. 21. Learned counsel for the appellant then submitted that the appellant was entitled to the benefit of section 20(4) of U.P. Act No. 13 of 1972 (hereinafter called the New Act) as amended upto date. The submission is without any force. It has been found by the lower appellate court that the appellant tendered the rent in the trial court on 4.11.1974. The contention of the appellant was repelled by the lower appellate court on the ground that the rent was not deposited on the first day of hearing as enjoined under section 20(4) of the New Act. It was further found that more than one date of hearing of the appeal had been fixed but no deposit was made and it was after about two years that the rent as contended by the appellant was deposited on 4.11.1974. The lower appellate court rightly refused to regard the benefit of section 20(4) of the New Act to the appellant. The lower appellate court further found that no protection could be afforded to the appellant nor he could be relieved from eviction. 22. Learned counsel for the appellant then submitted that the accommodation in question had been allotted in favour of Kanhaiya Lal appellant by the Rent Control and Eviction Officer on 9.7.1968 and as such the possession of Kanhaiya Lal howsoever illegal has been regularised. It has further been submitted that as there was a vacancy in law the Rent Control and Eviction Officer had jurisdiction to pass an allotment order in favour of Kanhaiya Lal, but the court below erred in assuming a jurisdiction in declaring the allotment order passed in favour of Kanhaiya Lal as illegal in view of the fact that there was no jurisdictional error on the part of the Rent Control & Eviction Officer to pass an allotment order in favour of Kanhaiya Lal. I is very difficult to agree with such a submission. It has to be seen whether the accommodation in question was vacant within the meaning of section 2(h) of the Act as amended thus empowering the Rent Control and Eviction Officer to pass an order under section 7(2) of the Act. I is very difficult to agree with such a submission. It has to be seen whether the accommodation in question was vacant within the meaning of section 2(h) of the Act as amended thus empowering the Rent Control and Eviction Officer to pass an order under section 7(2) of the Act. Section 2(h) of the Act provides that an accommodation would be open for allotment if it is actually vacant or is likely to fall vacant. It is admitted between the parties that on 9.7.1968 the accommodation was not actually vacant. The tenancy of Lala Baijnath was determined by a notice and a suit for his eviction was filed on 11.7.1968. It is manifest that on that date i.e., on 9.7.1968 the heirs of the deceased tenant were in possession of the suit accommodation. The tenancy of the suit accommodation devolved on the heirs of the deceased tenant. Had there been no notice terminating the tenancy of Lala Baijnath which was achieved during his life time, the heirs of Lala Baijnath after his death would have been entitled to occupy the accommodation as tenants. Further on this day no suit was pending as it was files only on 11.7,1968. The District Magistrate or an officer authorised by him had jurisdiction to pass an order under section 7 (2) of the Act where the accommodation is actually vacant or is likely to fall vacant. As has been shown above the accommodation was neither actually vacant nor was likely to fall vacant. The Rent Control and Eviction Officer by passing an allotment order in favour of Kanhaiya Lal had assumed jurisdiction under the Act which otherwise did not vest in him. Learned counsel for the appellant has argued that the civil courts had no jurisdiction to examine the validity or legality of the allotment order. Such a submission would stand repelled by the decision of the Supreme Court in the case of Smt. Munni Devi and another v. Gokal Chand and another, AIR 1970 Supreme Court 1727 where it has been held as under : "The Legislature has invested the District Magistrate 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 District Magistrate conclusive. The jurisdiction to pass an order in ejectment only arises if these is a vacancy. The jurisdiction to pass an order in ejectment only arises if these is a vacancy. The right of a tenant in possession is a valuable right and there is nothing in section 7 or section 7A which confers jurisdiction upon the District Magistrate to conclusively determine the facts on the existence of which his jurisdiction arises. Undoubtedly he has jurisdiction to make orders under section 7 and 7A 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 with jurisdiction that the order is not liable to be challenged in a civil court by virtue of section 16 of the Act". 23. In view of the above it is clear that vacancy is a jurisdictional fact which could not be decided by the Rent Control and Eviction Officer finally. He could not be permitted to clothe himself with a jurisdiction which he does not possess. The Rent Control and Eviction Officer by reaching an erroneous decision cannot be a judge of his own act. In Second appeal No. 2266 of 1979 Shyam Narain Verua v. Smt. Raj Kishori Nigam and another, decided on 27-3-1987 a similar question arose where I have taken the same view that the civil courts had ample power to determine the question whether the accommodation in question was vacant or not and whether the Rent Control and Eviction Officer had jurisdiction to allot it. 24. Another aspect of the instant case is that the defence of the appellant in the suit was that the tenancy had been inherited by the appellant for the suit accommodation on the death of the tenant Lala Baijnath and not on the basis of the allotment order. The appellant cannot be permitted to blow hot and cold with the same breath, namely, once claiming to be a tenant by inheritance while on the other hand claiming that an allotment order had been passed in his favour and his possession had been regularised. The position of the appellant in law would be and has thus been found correctly by courts below that after the death of the tenant Lala Baijnath the tenancy devolved on his heirs including the appellant. 25. The position of the appellant in law would be and has thus been found correctly by courts below that after the death of the tenant Lala Baijnath the tenancy devolved on his heirs including the appellant. 25. The allotment order had been passed by the Rent Control and Eviction Officer on 9.7.1968. Once as has been shown above, the accommodation in suit was not vacant, the Rent Control and Eviction Officer had no jurisdiction to pass an order under section 7 (2) of the Act. As the Rent Control and Eviction Officer assumed jurisdiction erroneously and without any authority of law the civil courts had ample jurisdiction to declare that the Rent Control and Eviction Officer had no jurisdiction to pass an allotment order. Further the respondents had attacked the validity of the allotment order on the ground that Kanhaiya Lal had obtained it by fraudulent misrepresentations and concealment of facts. Instances of fraudulent misrepresentations and suppression of facts were highlighted before the courts below inasmuch as Kanhaiya Lal while obtaining the allotment order surreptitiously concealed the fact that the tenancy which was in the name of his father Lal Baijnath, deceased, stood determined. Kanhaiya Lal further did not bring to the notice of the Rent Control and Eviction Officer that a notice had also been served on him regarding his wrongful possession after the determination of the tenancy. The trial court has given a finding of fact on the question of fraudulent misrepresentation and suppression of facts and such finding of act cannot be assailed in this second appeal. Further it was found by the trial court that the landlords required the accommodation for their personal use, but no opportunity was afforded to them by the Rent Control and Eviction Officer to canvass their bonafide requirement. When a landlord is not informed about the proceedings for the allotment of an accommodation and the accommodation is allotted to any other person then it is settled law that the landlord has a right to claim the benefit of Rule 6 as framed under section 17 of the Act for the release of the accommodation in his favour. It was in this context also that the trial court found that the allotment order stands vitiated. It was in this context also that the trial court found that the allotment order stands vitiated. Another ground on which the trial court has found the allotment order being illegal was that the benefit of Rule 7 was not accorded to the landlords who were in occupation of a part of the premises. A petition under section 7-F of the Act was filed by the respondents before the State Government. As no orders were passed by the State Government in view of the pendency of the civil suit where the validity and the legality of the allotment order was challenged, it was open to the civil courts to have examined its validity and legality. The trial court has thus rightly held that the allotment order passed in favour of Kanhaiya Lal is illegal and invalid and not binding on the respondents. In the case of Ramji Dass v. Trilok Chand, AIR 1971 Supreme Court 2361 it was held, while considering the order of the Rent Control and Eviction Officer, that even if it is assumed that an error in the exercise of jurisdiction was committed by the Rent Control and Eviction Officer, such an error can be corrected only in a proceeding under section 7-F of the Act by approaching the State Government or by filing a writ petition before the High Court. The order passed under section 3(2) of the Act and confirmed by the Additional Commissioner cannot be challenged in a suit. Section 3(1) of the Act imposes restriction on eviction. The order passed under section 3(2) of the Act and confirmed by the Additional Commissioner cannot be challenged in a suit. Section 3(1) of the Act imposes restriction on eviction. It further provides that subject to any order passed under sub-section (3) no suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds : "(a) that the tenant is in arrears of rent for more than 3 months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand; (b) that the tenant has wilfully caused or permitted to be caused substantial damage to the accommodation; (c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction as, in the opinion of the court, has materially altered the accommodation or is likely substantially to diminish its value; (d) that the tenant has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation or which is likely to affect adversely and substantially the landlords' interest therein; (e) that the tenant has on or after the 1st day of October 1946, has sublet the whole or any portion of the accommodation without the permission of the landlord; (f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; (g) that the tenant was allowed to occupy the accommodation as a part of his contract of employment under landlord and his employment has been determined." 26. Section 3(2) of the Act provides that where an application has been made to the District Magistrate for permission to sue a tenant for eviction and the District Magistrate grants or refuses to grant such permission the party aggrieved by his order may within 30 days from the date on which the order is communicated to him apply to the Commissioner to revise the order. The order passed under section 3(2) of the Act is revisable by the Commissioner under section 3(3) of the Act. The order passed under section 3(2) of the Act is revisable by the Commissioner under section 3(3) of the Act. The Commissioner would be empowered to set aside the order passed by the District Magistrate. It an order has been passed by the Commissioner under sub-section (3) of section 3 of the Act granting permission to file a suit in the civil court, the restriction imposed for the eviction of the tenant is thus removed. However, this order of the Commissioner passed under sub-section (3) of section 3 shall be subject to any order passed by the State Government passed under section 7-F shall be final. In the case of Ramji Dass v. Trilok Chand (supra) the Supreme Court was examining the jurisdiction of the District Magistrate under section 3 of the Act. But in the instant case the jurisdiction of the Rent Control and Eviction Officer was challenged on the ground that firstly there was no vacancy thus clothing the Rent Control and Eviction Officer to pass an allotment order and secondly the allotment order was void ab initio having been obtained by fraudulent misrepresentations and concealment of facts. A protest was made by the respondents against the passing of the impugned allotment order and the wrongful assumption of jurisdiction by the Rent Control and Eviction Officer. Such protest having been negatived by the Rent Control and Eviction Officer a petition under section 7-F of the Act was filed before the State Government. No decision was made on this petition by the State Government in view of the pendency of the civil suit. It is in such circumstances that it was wholly legal and absolutely within jurisdiction that the civil court examined the validity and legality of the impugned allotment order and found it to be illegal and invalid and not at all binding on the respondents. The lower appellate court also found that the allotment order would be of no avail to the appellant. It was further found that the allotment order being not bin ding on the respondents the appellant cannot claim immunity from eviction. 27. The lower appellate court also found that the allotment order would be of no avail to the appellant. It was further found that the allotment order being not bin ding on the respondents the appellant cannot claim immunity from eviction. 27. Learned counsel for the appellant has cited Abhai Mangal Prasad v. District Supply Officer, 1970 A.W.R. 116, Lachmi Narain v. Rent Control and Eviction Officer, 1957 A.L.J. 489, Om Prakash v. Jagdish Singh, 1966 A.L.J. 765, M.S. Giri v. Girdhari Lal, 1967 A.L.J. 346, R.N. Srivastava v. Rent Control and Eviction Officer, 1968 A.L.J. 14, and Mohd. Ismail v. Hafiz Noor Illahi, 1961 A.L.J. 235 to fortify his submissions but in view of the above discussions that there was neither any vacancy in the eye of law nor the Rent Control and Eviction Officer had jurisdiction to pass an allotment order under section 7 (2) of the Act, the allotment order so passed is void, abinitio, inoperative and a nullity. Another salient fact of this case is that the civil court has found that the allotment order had been surreptitiously obtained by fraudulent misrepresentation and concealment of facts. The above citations are easily distinguishable and are not applicable in the instant case. 28. In Abhai Mangal Prasad's case (supra) one Shambhu Prasad who was occupying the shop had intimated on 26-9-1964 that he had vacated the shop. However, it was stated thereafter that the intimation was only of the intention to vacate and not of actual vacancy. Abhai Mangal Prasad some how or the other entered into possession and applied for the allotment of the shop. The Rent Control and Eviction Officer found that Abhai Mangal Prasad had not come with clean hands after the vacation of the premises and as such his application was not considered. In the instant case before me as has been held earlier the portion in dispute was not vacant within the meaning of section 2(h) of the Act. Moreover, after the death of the tenant Lala Baijnath the appellant was occupying the portion in question as his heir. As the accommodation was not vacant the question of its allotment in favour of the appellant Kanhaiya Lal does not arise. Moreover, after the death of the tenant Lala Baijnath the appellant was occupying the portion in question as his heir. As the accommodation was not vacant the question of its allotment in favour of the appellant Kanhaiya Lal does not arise. Further it has been found by both the courts below that the allotment order had been obtained by fraudulent misrepresentation and concealment of fact inasmuch as the appellant had nowhere shown that the tenancy of the portion in question had been determined and he was in possession as a heir of the deceased tenant. Mere determination of tenancy would not invite the application of section 2 (h) of the Act so as to give jurisdiction to the Rent Control and Eviction Officer to allot the accommodation. The scheme of the Act and the intention of the legislature are clear that the District Magistrate would assume jurisdiction only in cases where the accommodation is vacant within the meaning of Section 2 (h) of the Act. Had that not been so any person who was likely to be evicted on the basis of a decree for eviction having been granted would frustrate such decree by obtaining an allotment order in his favour. That was never the intention of the Legislature or the scheme of the Act. 29. In Lachmi Narain's case (supra) an allotment order was passed in favour of a person who was already in possession thereof. It could clearly reveal that the person who was in possession was without any authority of law or a contract with the landlord. This case is again equally distinguishable for the singular reason that there was no vacancy in the eye of law in the instant case before me as Kanhaiya Lal appellant was the heir of the deceased tenant Lala Baijnath. The accommodation being not vacant could not have been allotted to him merely by the determination of the tenancy. The postulates of section 106 of the Transfer of Property Act only provide for a notice determining the tenancy and then filing of a suit. It does not render the accommodation vacant and open for allotment. 30. The facts in the case of Om Prakash v. Jagdish Singh (supra) are at variance with the controversy before me and is as such not applicable. 31. In M.S. Giri's case (supra) a decree for ejectment had been passed and execution proceedings had been initiated. It does not render the accommodation vacant and open for allotment. 30. The facts in the case of Om Prakash v. Jagdish Singh (supra) are at variance with the controversy before me and is as such not applicable. 31. In M.S. Giri's case (supra) a decree for ejectment had been passed and execution proceedings had been initiated. It is settled that where execution proceeding are pending and warrant for delivery of possession had been issued the accommodation is likely to fall vacant thus giving a power to the Rent Control and Eviction Officer to allot the accommodation. But in the instant case before me neither a decree was passed nor the execution proceedings were pending nor warrant for delivery of possession issued. 32. In R.N. Srivastava's case (supra) a vacancy had occurred, but in the instant case before me as no vacancy had occurred for the portion in dispute the question of allotment in favour of any person did not arise. 33. The case of O.P. Kathpalia v. Lakhmir Singh, 1984 (2) R.C.R. 201 is not at all applicable for the singular reason that in this case rent was not settled or agreed upon but in the instant case before me unlike the reported case the rent between Lala Baijnath and the landlords had been settled and vas paid at the rate of Rs. 100/- per month. 34. Similarly Mohd. Ismail's case (supra) is not applicable. In that case the rent was neither settled nor paid previously. In the case before me default was there in view of the rent being paid by Lala Baijnath to the respondent at the rate of Rs. 100/- per month. 35. Learned counsel for the appellant has very strenuously urged that the findings recorded by the trial court as well as the lower appellate court are erroneous and both the courts below have failed to appreciate the evidence in right perspective. It is very difficult to agree to such a submission which is not at all merited. In the instant case both the courts below have examined all the questions at issue and the surrounding circumstances and have recorded findings on the basis of such evidence. In second appeal the jurisdiction of the High Court is confined to questions of law and it is not open to the High Court to attempt a re-appraisal of the evidence. In the instant case both the courts below have examined all the questions at issue and the surrounding circumstances and have recorded findings on the basis of such evidence. In second appeal the jurisdiction of the High Court is confined to questions of law and it is not open to the High Court to attempt a re-appraisal of the evidence. Raruha Singh v. Achal Singh, AIR 1961 Supreme Court 1097 it has been held that the High Court's jurisdiction in second appeal is confined only to questions of law and it is not open to the High Court to attempt to re-appreciate the evidence. Further howsoever a finding of fact may be and howsoever gross the error may be it is not within the jurisdiction of this court to entertain it on such error or erroneous finding of fact. In Sri Sinha Ramajuja Jeer v. Sri Ranga Ramauja Jeer, AIR 1961 Supreme Court 1720 the Supreme Court has held that it has now been well settled that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact however gross the error may seem to be. It would not be justified in the instant case also to interfere with findings of fact. Similar view was taken by the Supreme Court in Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 Supreme Court 302 where it has been held that the court cannot interfere with the conclusions of fact recorded by the lower appellate court however erroneous the said conclusions may appear to be to the High Court. The Supreme Court further observed that however gross or inexcusable the error may see to be, there is no jurisdiction under section 100 C.P.C. to correct that error. 36. In view of the above discussions it is not open to this court to either reappraise or re-appreciate the evidence and to interfere with the findings of fact recorded by the courts below. Further neither there is any error of procedure or defect in the procedure where interference could be made by this Court. The Second appeal is wholly without merit and deserves to be dismissed. In the result the appeal fails and is hereby dismissed with costs.