HERAMBA NATH MUKHERJEE Vs. BIR CHARAN BAPULY

JUDGEMENT

(1.) THE Plaintiff -Respondent instituted the suit in appeal for possession of a portion of house no B6/112, Pitambarpura, Kedar Ghat, Varanasi and for recovery of Rs. 60/ - by way of damages for unauthorised use and occupation of the aforesaid accommodation from 17 -4 -63 to 15 -5 -63. Briefly put, the Respondent alleged that he was the owner in exclusive possession of the aforesaid house which was never let out on rent. The Appellant had approached him with a request that he be given some accommodation in the premises in suit till the end of March 1963. The Respondent acceded to the request of the Appellant and allowed him to occupy two rooms on the ground floor of the premises and also to share a common bath room and toilet, The Appellant occupied the aforesaid accommodation in September 1962. The Appellant however gave a notice to the Respondent on 30 -3 -63 in which he asserted his claim of tenancy over the portion of the house occupied by him. The Respondent revoked the licence on 4 -4 -63. Meanwhile on 1 -4 -63 (the Appellant had applied to the RC and EO for the allotment of the premises under his occupation and the suit in appeal was instituted on 15th May 1963. On 10 -10 -63 the accommodation in suit was allotted to the Appellant by the Rent Control Officer. The trial court dismissed the suit but its decision WEIS reversed on appeal by the learned 4th Addl. Civil Judge, Varanasi who decreed the suit for possession over the disputed premises.

(2.) LEARNED Counsel for the Appellant contended that the accommodation in the occupation of the Appellant was vacant and the Rent Control and Eviction Officer was fully competent to allot it to the Appellant. He argued that the Appellant was not a licensee of the Respondent but was his tenant and further that in view of the aforesaid allotment in his favour by the Rent Control and Eviction Officer he could not be ejected from the premises in suit. He relied on the order of the Rent Control and Eviction Officer which refers to the report of an Inspector -saying; that the accommodation in suit had been allotted earlier to one Sri Sur and that some other persons were also occupying it. Neither the Inspector was produced in evidence nor any order of allotment in favour of Sri Sur or any other person who were said to have occupied portions of the premises in suit as tenants was produced in evidence by the Appellant. The court below has observed:

(3.) IT must, be held that the accommodation occupied by the Appellant could not be treated as vacant and the Rent Control and Eviction Officer had no power to make an allotment in favour of the Appellant. I fully agree with the decision of the court below.