KARTAR CHAND Vs. MAHESH PRASAD AND OTHERS

JUDGEMENT

(1.) This is an appeal against the decision of a learned Single Judge made in a writ petition filed under Art. 226 of the Constitution, whereby the first two respondents prayed that an allotment order dated the 7th of May 1958 by the Rent Control and Eviction Officer, Kanpur, be set aside. The learned Single Judge by his judgment under appeal allowed the writ petition and quashed the order of the R.C. and E.O. whereby he had made the allotment of the premises in favour of the appellant.

(2.) In order to be able to appreciate the controversy that arose between the parties it is necessary to state a few facts. A premises bearing municipal No. 3 situated in Gumti No. 5, Kanpur, contained certain shops as also certain residential portions. The residential portions of the premises were confined to the first floor and were in the occupation of the landlords while the ground floor was let out for purposes of shops and respondent No. 4 Vir Bhan was one of the tenants of one of the shops which was the subject matter of the allotment which was quashed by the learned Single Judge. Vir Bhan carried on business in the shop along with his brother Kartar Chand, the appellant and the shop was in the possession of Vir Bhan originally from the 21st of Jan. 1949 under an allotment. Vir Bhan at some stage was alleged to have agreed to pay a rent of Rs. 45 per mensem for the premises though later on Vir Bhan in 1950 applied under Sec. 5 of the R.C. and E. Act to the First Civil Judge of Kanpur for fixation of rent. The learned Civil Judge by his order dated the 31st Jan. 1951 fixed the rent at Rs. 15 per mensem from the date of the occupation of the premises. Mahesh Prasad and Hira Lal who were the landlords of the premises felt aggrieved by the order of the First Civil Judge fixing the rent at Rs. 15 per mensem and therefore they came up in revision to the High Court. On the 29th of Feb. 1959 this Court allowed the revision on the ground that the Civil Judge had no jurisdiction to make the order fixing the rent for the case could be heard by a Munsif.

(3.) On the 10th of Sept. 1957 a notice was served on Vir Bhan by the landlords under Sec. 3 (a) of the Act and the landlords also served Vir Bhan with a notice under Sec. 106 of the T. P. Act sometimes in Sept. 1957. The landlords thereafter filed a suit for arrears and for ejectment against Vir Bhan. This suit was numbered 1210 of 1957. Vir Bhan filed a written statement to this suit on the 4th of March 1958 and in this written statement Vir Bhan specifically stated that he had vacated the premises sometimes in 1954. Vir Bhan further stated that Kartar Chand, the appellant, had since then been carrying on business in the shop although there was no valid permission in Kartar Chand's favour.