MOHAMMAD NAZIR Vs. BECHAND PRASAD

JUDGEMENT

(1.) Leave granted.

(2.) A building in the town of Banaras was statedly in possession of a dancing girl; it having been owned by respondent No. 1 herein. That dancer is stated to have associated with her two musicians to carry on her vocation. That duo is respondents Nos. 2 and 3 herein. All the three respondents are represented by the same learned counsel. At a point of time, by an executive drive, all the dancing girls were statedly driven out of the area where the building in dispute stood located. The building, according to the claim of the landlord was not available for regulation of letting. The authorities concerned took a contrary view and considered that the building was lettable. An order under Section 16 of the U.P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (the Act) was passed in favour of the appellant herein - Mohd. Nazir - on 17-5-1972, in respect of the above-mentioned building. Accoring to him, he was put in possession of the property in pursuance of the allotment order but he was outsted thereform by the landlord and the dancing girl with her two musicians were put back in possession. The dancing girl is now dead and it is the musicians who continue to be in possession of the building under the protective umbrealla of the landlord.

(3.) In such distress, the appellant moved the District Magistrate under Section 16(4) of the Act for being restored possession thereof or, in other words, to be again put in its possession. The District Magistrate spurned his request on the footing that the law enjoined the allottee being put in possession of the building only once and that that obligation the District Magistrate had duly fulfilled. It was taken that in the eye of law, the appellant was in possession over the property. On such view taken, the appellant was constrained to move the Civil Court against the landlord seeking restoration of possession of the building. The Civil Court recorded a finding that since the appellant was never put in possession, the question of restoration could not and did not arise. Shielded with that finding, the appellant again approached the District Magistrate under Section 16(4) of the Act, requiring the said Authority to put him in possession as per the Civil Courts finding he had never been put in possession. The District Magistrate this time allowed the request of the appellant and ordered his being put in possession. The landlord and the musicians took up the matter in revision before the District Judge who confirmed the order of the District Magistrate. The High Court, however, in writ proceedings at the instance of the landlord and the musicians, upset the order of the District Magistrate, taking the view that the District Magistrate had no power to reinstate the appellant in possession when earlier, as per averment possession had been delivered to the appellant. Further, the view taken was that the Civil Courts judgment was not binding on the District Magistrate and that the doctrine of res judicata was applicable.