KAMLA DEVI Vs. ADDL DISTRICT JUDGE JHANSI

JUDGEMENT

(1.) the petitioner is the owner and landlord of the premises No. 208-c/3, jokham bagh, Civil Lines, Jhansi. The aforesaid premises was previously tenanted by Sri Ramesh Chand Agarwal, the respondent No. 4. The petitioner instituted a suit for eviction against the respondent No. 4. Which was decreed in terms of a compromise. As per the compromise dated 4-10-1985, the respondent No. 4 was to vacate the premises within one year, i.e., on or before 4-10-1986. It is alleged that the respondent No. 4 did not vacate the premises in question as per the compromise decree and, therefore, the petitioner moved an application for execution of the decree, which was numbered as execution case No. 4 of 1987. Prior to the filing of the execution application, it transpires that the respondent No. 4 intimated the rent control and eviction officer on 28-8-1986 that he was going to vacate the premises, pursuant to which the rent control and eviction officer notified the vacancy on 13-9-1984. When the petitioner came to know about the vacancy, he also moved an application for release of the premises in his favour. The respondent No. 5, suresh prasad (in writ petition No. 1808 of 1990) also moved an application for allotment of the premises. The rent control and eviction officer heard the prospective allottees as well as the petitioner-landlord and by an order dated 5-12-1986, the rent control and eviction officer rejected the release application of the petitioner and, by the same order, allotted the premises to the respondent No. 3, pooran chand agarwal, who was another prospective allottee. The petitioner challenged the order dated 5-12-1986 passed by the rent control and eviction officer by filing a revision under Section 18 of the act. The revision was allowed by an order dated 9-4-1987 and the allotment order was set aside and the matter was remanded back to the rent control and eviction officer to decide the release application of the petitioner. The revisional court held that the prospective allottee could not contest the release application of the landlord and that the release application alone could be considered by the rent control and eviction officer. The rent control and eviction officer by order dated 31-3-1989, again rejected the release application of the petitioner. While rejecting the release application, the rent control and eviction officer took into consideration, the evidence, which had been led earlier by the prospective allottee. The petitioner again filed a revision, being rent control revision No. 86 of 1989 which was dismissed by an order dated 24-4-1990. The revisional court held that even though the prospective allottee was not heard by the rent control and eviction officer, he could still consider and take into account the evidence led by the prospective allottee.

(2.) it may be stated here that pursuant to the allotment order dated 5-12-1986. The respondent No. 3, pooran chand agarwal took possession of the premises in question on 8-12-1986 from Sri Ramesh Chandra Agarwal, Respondent No. 4, who was the sitting tenant. It was alleged that the possession was taken by the respondent No. 3 in ollusion with the respondent No. 4 in order to defeat the decree in Scc Suit No. 14 of 1983.

(3.) it may be stated here that the compromise made in Scc Suit No. 14 of 1983 was put in execution being execution case No. 4 of 1987. In these execution proceedings, respondent No. 3, pooran chand agarwal appeared and filed an objecton under order 21, Rule 97. C.p.c. alleging therein that he had been allotted the premises in question by an allotment order dated 5-12-1986 and that he had obtained possession on 8-12-1986 and therefore, the decree cannot be executed. The objection of the respondent No. 3 was rejected by the executing court by an order dated 2-11-1987 on the ground that the allotment order dated 5-12-1986 had been set aside by the revisional court by an order dated 9-4-1987. The executing court further directed that the possession be given to the petitioner.