PEER BUX Vs. KARAM CHAND AND OTHERS

JUDGEMENT

(1.) This a defendant's second appeal from the decision of the 1st Civil Judge, Kanpur, decreeing the plaintiff-respondent's suit under Or. XXI, R. 103, C.P.C. for establishing his title as a tenant of a house situate in Kanpur. The facts are these. The defendant Peer Bux is the owner of the house and his previous tenant was one Mewal Das. On 13th May be obtained a decree for ejectment and recovery of arrears of rent against Mewal Das. On 30th May, 1953, Karam Chand the plaintiff in the present suit obtained an order of allotment from the Rent Control arid Eviction Officer, Kanpur, directing the landlord to let the house to him. On 2nd June, 1953 he took possession in pursuance of that order. Meanwhile, the landlord Peer Bux executed the decree for ejectment and arrears of rent against Mewal Das and this brought him into conflict with the rights of the new allottee - the plaintiff - who was dispossessed in the execution of the decree. He moved an application under Or, XXI, R, 100, C.P.C., complaining that he had been wrongfully dispossessed. The court rejected this application and the plaintiff thereupon filed the present suit under R. 103 to establish his claim to the possession of the house. He alleged that Mewal Das had vacated the house before the execution of the decree and the house was vacant when he applied for allotment. He asked for a declaration of his title as tenant of the house in dispute and for recovery of possession, but he gave up the second relief for possession during the hearing of the suit. The landlord Peer Bux, the defendant resisted the suit on the ground that the allotment in favour of the plaintiff Karam Chand was illegal as the house was not vacant and Mewal Das was still in possession. He alleged that Karam Chand obtained the allotment fraudulently in collusion with Mewal Das. The trial court held that the house was vacant on the date when Karam Chand obtained the allotment order and took possession of the house and rejected the defendant's version that Mewal Das was in possession at the time, but it dismissed the plaintiffs' suit on the ground that it was barred by the proviso to Sec. 42 of the Specific Relief Act because the plaintiff having given up the relief for possession was not entitled to a mere declaration of his title. On appeal by the plaintiff, the learned Civil Judge concurred in the finding that the plaintiff Karam Chand became a tenant of the house under a valid allotment order, but disagreed with the view of the trial court that the suit was barred under the proviso to Sec. 42. He held that it is not necessary in a suit filed under Or. XXI, R. 103 to ask for consequential relief which is implicit in the suit itself. Accordingly he allowed the appeal and decreed the plaintiff's suit with costs. The defendant has now come to this Court in second appeal.

(2.) Mr. M.H. Beg learned counsel for the appellant who argued this appeal with his usual thoroughness urged the following points in support of it. First, the view of the lower appellate court that the plaintiff derived a valid title of tenancy under the allotment order of 30th May 1953 is erroneous as a tenancy cannot be created by any allotment order but only by agreement between the landlord and the tenant, and there was no evidence of such an agreement between the plaintiff and the defendant. On the contrary the evidence disclosed that the defendant never wanted the plaintiff as his tenant and succeeded in getting the allotment order of 30th May cancelled by the Rent Control and Eviction Officer, Secondly, Mr. Beg argued that the view of the lower appellate court that the plaintiff's suit for a declaratory relief was not barred by Sec. 42 of the Specific Relief Act is erroneous. Thirdly the allotment order in favour of the plaintiff was invalid as the Rent Control and Eviction Officer had no power to allot a part of the accommodation. Lastly, the allotment order of 30th May barring been set aside, the plaintiff lost all rights to the possession of the house and his suit should have been dismissed.

(3.) Mr, R.L. Anand learned counsel for the respondent argued in reply that the bar of Sec. 42 of the Specific Relief Act does not apply to a suit wider Or. XXI, Rr. 63 and 103, C.P.C. each of which confers a special right on a person whose application under R. 58 or 100 as the case may be, has been rejected. He also raised a preliminary objection against the other arguments of Mr. Beg on the ground that these had not been raised during the trial and should not be entertained in second appeal as they involved mixed question of law and fact.