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2004 DIGILAW 874 (ALL)

Reeta Chauhan v. Virendra Govind Upadhya

2004-04-21

U.S.TRIPATHI

body2004
JUDGMENT : U.S. TRIPATHI, J. 1. This second appeal has been directed against the judgment and decree dated 18.3.2004, passed by Additional District Judge (Fast Track Court No. 1), Bareilly in Civil Appeal No. 33 of 2002, arising out of judgment and decree dated 26.3.2002 passed by Civil Judge (Senior Division), Court No. 4, Bareilly in Original Suit No. 121 of 1995. 2. Respondent Virendra Govind Upadhya (hereinafter called the Plaintiff) filed Suit No. 121 of 1995 against Smt. Reeta Chauhan, (hereinafter called the Defendant) for mandatory injunction directing the Defendant to vacate the house in suit and to surrender the said house in his favour. The case of the Plaintiff in brief was that he was owner of the house in suit. In the month of October, 1991, on the request of the Defendant and on the recommendation of one Dr. S.K. Tripathi, the Plaintiff allowed the Defendant to stay for few days in the house in suit as temporary licensee, because she was taking medical treatment at Bareilly and wanted to stay there for the said purpose. Thereafter, the Defendant did not vacate the premises and continued to live in it and refused to vacate her possession. When he insisted the Defendant to vacate the possession she filed Original Suit No. 81 of 1984 against the Plaintiff wrongly alleging that she was tenant of the Plaintiff, though she was never admitted as tenant and no relationship of landlord and tenant existed between the parties. 3. The Defendant contested the above suit mainly on the ground that she was occupying the premises in suit for last eight years as tenant of the Plaintiff on payment of rent at the rate of Rs. 200 per month and that she had already filed a suit for permanent injunction against the Plaintiff, restraining him to evict her forcibly from the premises in suit. She further, contended that she was not a licensee of the house in suit and was its tenant. 4. The Defendant earlier filed Suit No. 81 of 1994 against the Plaintiff for permanent injunction, restraining him from evicting him from the house in suit on the ground that she was occupying the house in suit as tenant on monthly rental of Rs. 200. 5. Both the suits' were consolidated by the trial court. 4. The Defendant earlier filed Suit No. 81 of 1994 against the Plaintiff for permanent injunction, restraining him from evicting him from the house in suit on the ground that she was occupying the house in suit as tenant on monthly rental of Rs. 200. 5. Both the suits' were consolidated by the trial court. The trial court framed necessary issues arising out of pleadings of the parties in both the suits and decided both the suits by a common judgment holding that Smt. Reeta Chauhan had not obtained any allotment order and there was no written contract of tenancy and, therefore, she was not the tenant of the premises in suit in view of Full Bench decision of this Court in Nutan Kumar's case 1993 (2) ARC 204. It further held that Virendra Govind Upadhya also failed to establish that Smt. Reeta Chauhan was his licensee. With these findings the trial court dismissed both the suits. 6. Aggrieved with the above judgment and decree Smt. Reeta Chauhan filed Civil Appeal No. 32 of 2002 and Virendra Govind Upadhya filed Civil Appeal No. 33 of 2002. The lower appellate court consolidated both the appeals and disposed of by a common judgment holding that there was no allotment in favour of Smt. Reeta Chauhan and, therefore, she cannot be treated as tenant of the premises in suit and Plaintiff Virendra Govind Upadhya had successfully proved that Smt. Reeta Chauhan was occupying the premises in suit as licensee. The owner of the house had revoked the licence and, therefore, the possession of Smt. Reeta Chauhan was unauthorized and the owner was entitled to the relief sought. With these findings the lower appellate court dismissed Civil Appeal No. 32 of 2002 filed by Smt. Reeta Chauhan and allowed Civil Appeal No. 33 of 2002 filed by Virendra Govind Upadhya, set aside the judgment and decree of the trial court in O.S. No. 121 of 1995 and directed Smt. Reeta Chauhan to deliver vacant possession of the premises in suit to the owner of the house and to pay damages at the rate of Rs. 25 per day. 7. Aggrieved with the above judgment and decree Smt. Reeta Chauhan filed present second appeal only against the judgment and decree in Civil Appeal No. 33 of 2002. 8. 25 per day. 7. Aggrieved with the above judgment and decree Smt. Reeta Chauhan filed present second appeal only against the judgment and decree in Civil Appeal No. 33 of 2002. 8. I have heard learned Counsel for the Appellant, learned Counsel for the caveator and have gone through the judgments of both the courts below. 9. The case of Appellant Smt. Reeta Chauhan is that she was occupying the premises in question as tenant on monthly rental of Rs. 200 but it is not disputed that there was no valid allotment order in her favour as required by Section 11 of U.P. Act No. 13 of 1972. The trial court relying on Full Bench decision of this Court in Nutan Kumar's case (supra) held that in the absence of any valid allotment order in favour of Smt. Reeta Chauhan, she cannot be deemed to be tenant. It further held that in view of the above Full Bench decision the landlord can also not file suit for ejectment. 10. In Nutan Kumar's case (supra) the Full Bench of this Court answered the questions referred as below: (1) An agreement of lease between the landlord and the tenant for letting and occupation of a building in contravention of the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is void. (2) The said agreement is unenforceable in law and no decree for ejectment of the tenant can be passed in favour of the landlord on the basis thereof. 11. The Full Bench decision of this Court was challenged before the Apex Court and the Apex Court in Nutan Kumar and Others vs. IInd Additional District Judge and Others, (2002) 8 SCC 31 after considering various decisions including three Judges Bench decision in Nanakram vs. Kundalrai, (1986) 3 SCC 83 held as below: It is thus, to be seen that the principles laid down in Nanakram case still hold the field. There is no contrary or conflicting decision or authority. The Full Bench was bound by the authority in Nanakram case and could not have taken a contrary view. As Nanakram's case was decided by three Hon'ble Judges of this Court, it would also be binding on us. We are, therefore, not going into the question of correctness or otherwise of such a view. The Full Bench was bound by the authority in Nanakram case and could not have taken a contrary view. As Nanakram's case was decided by three Hon'ble Judges of this Court, it would also be binding on us. We are, therefore, not going into the question of correctness or otherwise of such a view. We may however, mention that the impugned judgment dated 20.5.1993 of the Full Bench is not correct for another reason also. Section 13 of the said Act specifically provides that a person who occupies, without an allotment order in his favour shall be deemed to be an authorized occupant of such premises. As he is in unauthorized occupation he is like a trespasser. A suit for ejectment of a trespasser to get back possession from a trespasser could always be filed. Such a suit would not be on the contract/agreement between the parties and would thus not be hit by principles of public policy also. 12. Thus, now it is settled position of law that a person occupying a premises without any allotment order in his favour shall be deemed to be an unauthorized occupant of such premises and his position is that of a trespasser. Consequently, a suit for ejectment of a trespasser to get back possession from a trespasser could always be filed by the landlord/owner of the premises. 13. It is also settled law that if a question is finally settled by the Apex Court (the highest court of the country) any question against the decision is not a substantial question of law as the position is already settled and is to be followed by all concerned. Thus, there is settled law regarding status of Smt. Reeta Chauhan that her status in the premises in question is that of a trespasser or unauthorized occupant and a suit for possession by the owner/landlord of the premises against such an unauthorized occupant is maintainable. 14. However, the learned Counsel for the Appellant contended that the Plaintiff/landlord had filed a suit for mandatory injunction treating the Defendant/Appellant as his licensee and not a trespasser or unauthorized occupant and the proper course for him was to file a suit for possession but not a suit for mandatory injunction. 14. However, the learned Counsel for the Appellant contended that the Plaintiff/landlord had filed a suit for mandatory injunction treating the Defendant/Appellant as his licensee and not a trespasser or unauthorized occupant and the proper course for him was to file a suit for possession but not a suit for mandatory injunction. He also contended that there is vast difference between lease or licence as in case of a lease there is transfer of interest in immovable property to enjoy, whereas in the case of licence there is no transfer of interest in immovable property at all and the lessee's right is his right to possession and enjoyment of the demise to the exclusion of lessor. There is no dispute regarding above proposition of law, but the admitted case of the parties is that the Appellant was occupying the premises in suit though on a contract of tenancy, but without any valid allotment order. The nomenclature used by the in describing the status of Appellant shall be considered in the light of admitted case of the parties. Therefore, the description of word licensee in the plaint of the would not change the position and status of the Appellant and since she was occupying the premises in question on a contract of tenancy but without any allotment order her position is that of unauthorized occupant/trespasser and in any event the suit for her ejectment by the landlord was maintainable. 15. It is true that the had claimed relief for a decree of mandatory injunction against the Defendant/Appellant directing her to vacate the house in suit and for recovery of pendente lite and future damages at the rate of Rs. 25 per day, but couching the relief by some other words will not change the nature of the suit. It is the pith and substance of the pleadings which constitute nature of the suit. If the wordings of the relief claimed by the are analysed, it would appear that the suit was for possession against the Appellant, directing him to vacate the house in suit and, therefore it was a suit for possession by ejectment of the Appellant. Therefore, the Plaintiff/cannot be said non-suited, simply on the ground by describing the relief in some other words, while on the reading of relief clause, it is clear that he sought relief for possession by ejectment of the Defendant. 16. Therefore, the Plaintiff/cannot be said non-suited, simply on the ground by describing the relief in some other words, while on the reading of relief clause, it is clear that he sought relief for possession by ejectment of the Defendant. 16. The lower appellate court had recorded a finding on the basis of the decision of the Apex Court cited above and rightly decreed the suit of Plaintiff/Respondent. 17. In view of above discussion and observation, I find that the points involved in the case are now settled by decision of the Apex Court and, therefore, no substantial question of law is involved in this appeal. 18. The appeal is consequently dismissed summarily under Order XLI, Rule 11, Code of Civil Procedure.