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2011 DIGILAW 58 (ALL)

Natthu Lal Rayakwar v. Majeed Khan

2011-01-10

SANJAY MISRA

body2011
JUDGMENT Hon'ble Sanjay Misra, J. - Heard Sri P.K. Jain learned Senior Counsel assisted by Sri Manish Jain learned counsel for the plaintiff appellant and Sri K.K. Tiwari learned counsel for the contesting defendant respondent no. 1. 2. According to Sri Jain the plaintiff appellant had inducted the defendant respondent no. 1 in the shop in question and since the shop belonged to Nagar Nigam, Jhansi (defendant respondent no. 2) the plaintiff was paying rent directly to Nagar Nigam and as such the case setup by the defendant respondent in his counter claim that the plaintiff appellant is a licensee could not have been decreed. He submits that the plaintiff had filed the suit that he be not evicted otherwise than by due course of law however, both the courts below have dismissed his suit and allowed the counter claim of the defendant respondent no. 1 for eviction of the plaintiff appellant. 3. Sri Jain challenges the impugned judgments on the ground that once the defendant respondent no. 1 inducted the plaintiff appellant in the shop belonging to the Nagar Nigam, Jhansi a vacancy arose and therefore even if the status of the plaintiff appellant is considered to be that of a license he would still have protection under the U.P. Urban Building (Regulation of Letting, Rent & Eviction) Act, 1972. 4. The other submission is that the rent receipts which were found by the courts below not in the name of plaintiff appellant but the rent was paid in the name of the defendant respondent and produced by the plaintiff appellant were duly proved by him and therefore he was a tenant of the Nagar Nigam, Jhansi which was admittedly owner of the shop in question and the plaintiff appellant could be evicted in accordance with law only at the instance of Nagar Nigam, Jhansi and not at the instance of the defendant respondent no. 1 5. Sri K.K. Tiwari appearing for the defendant respondent no. 1 has submitted that the defendant respondent no. 1 was allottee of the shop in question from Nagar Nigam, Jhansi. He had permitted the plaintiff appellant by a license to occupy the shop and when the license was orally terminated and the plaintiff appellant refused to hand over possession of the shop in question to the defendant respondent no. 1 has submitted that the defendant respondent no. 1 was allottee of the shop in question from Nagar Nigam, Jhansi. He had permitted the plaintiff appellant by a license to occupy the shop and when the license was orally terminated and the plaintiff appellant refused to hand over possession of the shop in question to the defendant respondent no. 1 and the plaintiff appellant had filed the instant suit wherein the defendant respondent no. 1 filed his counter claim and claimed eviction of the plaintiff appellant. 6. He informs that the Nagar Nigam, Jhansi although was arrayed a party in the proceedings they did not contest the suit nor they contested the counter claim. Having considered the submission of learned counsel for the parties and perused the impugned judgments both the courts below have believed the case setup by the defendant respondent no. 1 to the extent that the plaintiff appellant was a licensee of the defendant respondent no. 1 in the shop in question. They also found that the license was orally revoked. The courts below did not decree the suit of the plaintiff appellant that they should not be evicted otherwise than by due course of law. The courts below have considered the rent receipts filed by the plaintiff appellant and found that the rent was being paid and receipts were in the name of defendant respondent. However, it has been recorded that the shop in question was allotted by the Nagar Nigam, Jhansi to the defendant respondent no. 1 and the plaintiff appellant was a licensee of the defendant respondent no. 1. The mere plea that the plaintiff appellant was depositing the rent with the Nagar Nigam, Jhansi on behalf of defendant respondent would not enhance the status of the plaintiff appellant in so far as the defendant respondent no. 1 is concerned primarily for the reason that the defendant respondent no. 1 is admittedly the allottee of the shop in question and secondly that the plaintiff appellant had entered the shop as a licensee. Therefore, the plaintiff appellant cannot claim to be tenant of the Nagar Nigam, Jhansi even if he was depositing rent with the Nagar Nigam, Jhansi on behalf of defendant respondent no. 1. Once the courts below have recorded that the plaintiff appellant was a licensee of the defendant respondent no. 1 the consequences of revocation of license would follow. Therefore, the plaintiff appellant cannot claim to be tenant of the Nagar Nigam, Jhansi even if he was depositing rent with the Nagar Nigam, Jhansi on behalf of defendant respondent no. 1. Once the courts below have recorded that the plaintiff appellant was a licensee of the defendant respondent no. 1 the consequences of revocation of license would follow. The license was revoked and therefore under the counter claim the eviction decree has been passed. There is no error in such concurrent finding of fact recorded by the courts below. 7. In so far as the other submission of Sri Jain is concerned that since Nagar Nigam, Jhansi was owner of the shop in question and the plaintiff appellant has been inducted therein then there should be a vacancy and the consequence of the vacancy as contemplated under Section 13 of the U.P. Urban Building (Regulation of Letting, Rent Eviction) Act 1972 would follow is concerned such an issue was neither taken by the plaintiff appellant before the courts below nor any issue on such a plea was got framed. Therefore, such plea cannot be permitted at the stage of second appeal for the reason that if the issue was not framed there was no assertion of any question of fact or law nor there was any occasion for denial of such assertion hence no evidence has been led either by the plaintiff in support of his suit nor by the defendant in support of his counter claim. 8. Moreover, the plea of vacancy raised by Sri Jain would not arise as a substantial question of law in the facts and circumstance of this case in view of the concurrent findings of fact recorded by the courts below that the plaintiff appellant was a licensee of the defendant respondent no. 1 and if he was a licensee the license could be revoked even orally and the plaintiff appellant cannot claim any higher status than that of a licensee in the shop in question. 9. For the aforesaid reasons no substantial question of law arises in this second appeal which is concluded by concurrent findings of fact. 10. The appeal is accordingly dismissed. 11. At this stage Sri Jain has submitted that the plaintiff appellant be given some time to vacate the premises and remove his goods therefrom. 12. Sri K.K. Tiwari for the defendant respondent no. 10. The appeal is accordingly dismissed. 11. At this stage Sri Jain has submitted that the plaintiff appellant be given some time to vacate the premises and remove his goods therefrom. 12. Sri K.K. Tiwari for the defendant respondent no. 1 has considered such request and agreed that the plaintiff appellant should vacate the premises within two months from today. 13. In case the plaintiff appellant submits an undertaking before the Trial Court that he shall vacate the premises and handover peaceful possession to the defendant respondent no. 1 on or before 10.3.2011 the decree shall not be executed till then. 14. The plaintiff appellant should deposit the rent of the shop in question with the Nagar Nigam, Jhansi along with arrears if any up to 10.3.2011 within three weeks from today. In the event of failure on complying any of the aforesaid conditions the decree will become executable forthwith. No order is passed as to costs.