RAJENDRA PRASAD Vs. JIWAN SINGH AND ANOTHER

JUDGEMENT

(1.) This is a plaintiff's appeal from an appellate decree of dismissal of a suit brought for declaration and permanent injunction. For a proper understanding of the controversy arising out of this appeal the material facts are as follows. In Mohalla Nilkanth Hariparbat, Agra City, there are two shops owned by one Genda Puri. Till September 1966 these shops were in the tenancy of one Kedar Nath Tandan. On 12 -9 -1966 Kedar Nath Tandan intimated to the RC and EO, Agra, that he had vacated the shop and delivered possession of the same to the landlord. As found by the courts below, the key of the shops was handed over by Kedar Nath Tandan to Genda Puri on 12 -9 -1966 and rent was paid by the former to the latter upto that date. On the same day, that is, 12 -9 -1966, the RC and EO notified the vacancy. On 19 -9 -1966 Rajendra Prasad, the plaintiff, made an application in the prescribed form to the RC and EO for allotment of the two shops. On 10 -11 -1966 Kedar Nath Tandan again intimated to the RC and EO that he had already vacated the shops on 12 -9 -1966. On 15 -11 -1966 Jiwan Singh, the first defendant in the suit, applied for allotment of the two shops and Genda Puri, the landlord, second defendant in the suit, intimated that the previous tenant Kedar Nath Tandan had not given him actual possession but had left the shops in possession of Rajendra Prasad. On 7 -12 -1966 a report was submitted by an Inspector to the RC and EO that there was a vacancy and that Rajendra Prasad's need was more genuine than that of Jiwan Singh. On 20 -12 -1966 Genda Puri, the landlord, sent an intimation to the RC & EO that the two shops were vacant for the purposes of allotment. On 6 -1 -1967 the RC and EO fixed 2 -2 -1967 for consideration of Rajendra Prasad's application for allotment dated 19 -9 -1966. On 21 -1 -1967 Genda Puri, the landlord, applied to the RC and EO for allotment of the shops to Jiwan Singh as his nominee u/R. 4 of the Rules framed under UP Act No. III of 1947. On 27 -1 -1967 the RC and EO passed an order allotting the two shops to Jiwan Singh as nominee of the landlord and further observing that Jiwan Singh's need was more genuine. On 3 -2 -1967 Rajendra Prasad applied for cancellation of the allotment order passed in favour of Jiwan Singh. It appears that no orders were passed on the application of Rajendra Prasad for allotment of the two shops and on his subsequent application for cancellation of the allotment order passed in favour of Jiwan Singh. Meanwhile proceedings u/S. 7 -A(1) of the UP Act No. III of 1947 were commenced by issue of a notice to Rajendra Prasad to show cause why he should not be evicted from the shops. Rajendra Prasad submitted a reply. Eventually by an order dated 25 -5 -1967 the DSO, to whom the case was transferred, rejected the application of Rajendra Prasad dated 3 -2 -1967 and further rejected his explanation and directed notice to issue u/S. 7 -A(ii) of the said Act. On the same day Rajendra Prasad instituted the suit giving rise to this appeal for: (1) a declaration that the order of allotment dated 27 -1 -1967 in favour of the defendant No. 1 was illegal, ultra vires, fraudulent and was not binding on the plaintiff, and (2) that the defendant be restrained by permanent injunction from interfering with the possession of the plaintiff in pursuance of the aforesaid order. The cause of action in the suit was materially based on the allegation that the orders passed by the Authorities were without jurisdiction, against the rules and the principles of natural justice, the plaintiff having not been afforded an opportunity to plead his case for allotment. Jiwan Singh was impleaded as the first defendant and Genda Puri, the landlord, as the second defendant. Both the defendants contested the suit by filing separate written statements but substantially raising the same pleas in defence. It was said that the order dated 27 -1 -1967 allotting the two shops to Jiwan Singh was proper and legal order having been duly passed u/R. 4 of the UP Act No. III of 1947 as the DM had failed to allot the two shops within thirty days of the intimation of vacancy by the landlord who nominated the first defendant as his tenant. It was further pleaded that the plaintiff had come into possession stealthily behind the back of the landlord of the two shops by entering into an arrangement with the previous tenant and the second defendant never accepted him as a tenant. It is not necessary to give the details of other pleadings of the parties as nothing will turn on them in this appeal.

(2.) The learned Munsif decreed the plaintiff's suit having found that Kedar Nath Tandan, the previous tenant, delivered possession of the two shops to Genda Puri, the landlord, on 12 -9 -1966 who subsequently on 22 -10 -1966 put the plaintiff in possession of the same as tenant; that the plaintiff having come into possession of the shops became a tenant, the DM not having allotted the shops though the vacancy was intimated earlier; that the landlord had also intimated his consent in favour of the plaintiff though later on he tried to resile and that the allotment order in favour of Jiwan Singh was passed in contravention of the rules and without affording a reasonable opportunity to the plaintiff by the RC and EO.

(3.) On appeal by the defendants the learned Addl. Civil Judge who heard the appeal allowed it, reversed some of the findings and the decree of the learned Munsif and dismissed the plaintiff's suit. The learned Judge however, does not seem to have reversed the finding of the learned Munsif on the crucial question of the two shops having fallen vacant on 12th September 1966 when the possession of the same was delivered by Kedar Nath Tandan to the landlord but took the view that the landlord having intimated the vacancy u/S. 7(i)(a) of the UP Act No. III of 1947 on 20 -12 -1966 and the learned DM not having passed the allotment order within thirty days of the intimation, Genda Puri as the landlord was entitled to nominate Jiwan Singh as tenant, thus the order of allotment in favour of the nominee passed on 27 -1 -1967 was in accordance with law and rules and no question, therefore, arose for further considering the application of the plaintiff for allotment as in exercise of powers under R. 4, the RC and EO was not bound to hear any other applicant for allotment. That seems to be the main ground on which the learned Judge of the court below set aside the judgment of the learned Munsif and dismissed the plaintiff's suit.