HIRA LAL Vs. MAST RAM

JUDGEMENT

(1.) THE defendant-appellant by means of this second Appeal seeks the setting aside of the decree passed by the first appellate court where under reversing the judgment and decree of the trial court dated 7-7-80, the suit of the plaintiff was decreed and it was declared that the allotment order dated 16-7-77 was illegal and without jurisdiction and had no binding effect.

(2.) THE plaintiff's case, briefly put, was that he was the owner of the house no. 157 situated in Azad Ganj, Sipri Bazar, Jhansi. In this house Smt. Prema Bai, wife of Laxmi Narain was a tenant at a monthly rental of Rs. 30/- Mastram filed a suit no. 33 of 1973 against her for ejectment and recovery of rent which was decreed. Prakash Narain and Kailash Narain sons of Smt. Prema Bai filed a suit no. 536 of 1.974 against Mastram in the court of Munsif, Jhansi for declaration to the effect that they were not liable to ejectment on the basis of decree no 33 of 1373. THEy also moved an application on 19-8-74 for restraining Mastram from dispossessing them on the basis of the decree no. 33 of 1973. THE parties were directed to maintain status quo. THE defendant in collusion with Prakash Narain moved an application before Rent Control and Eviction Officer, Jhansi for allotment of house no. 157 and obtained an illegal allotment order no. 40 of 1977 dated 16-7-77. THE Rent Control Officer had no jurisdiction to make the allotment order on the basis of that allotment order, the defendant obtained possession over the house no. 157 which is illegal. THE house was not vacant on 16-7-77 and was not likely to fall vacant and, therefore, it could not be allotted. THE allotment order is without jurisdiction and is null and void. THE plaintiff claimed a declaration that the allotment order is null and void.

(3.) "The first appellate court after carefully considering the evidence and materials brought on record reversed all the findings recorded by the trial coast. It came to the conclusion that the affect of the injunction order issued in original suit no 536 of 1974 was chat the delivery of possession pursuance to the decree passed in O. S. No. 33 of 1973 stood suspended and so long as the latter suit was pending. Mastram could not take possession of the premises in dispute and the effect of the order issuing the writ of delivery of possession stood neutralised by the interim order of injunction issued in the suit of 1974 which was against Mastram If was noticed that the allotment order had been passed on 16-7-77 whereas the interim injunction which was issued on 19-8-74 was continuing on the said date and had lapsed on 15-11-77 when suit no. 536 of 1974 was dismissed for non prosecution. The first appellate court came to the conclusion that the allotment order in question was clearly without jurisdiction as the disputed accommodation was neither vacant nor could be deemed to have likely to Tall vacant on the date of the passing of the allotment order. In this connection the first appellate court also observed that the sitting tenant or her sons had not been served any notice intimating any vacancy according to law. In the circumstances it was held that. Smt. Prema Bai or her sons could not be deemed to have vacated the house before the allotment order was passed. The first appellate court on an appraisal of evidence on the record came to the conclusion that the defendant had failed to show that house in dispute was actually vacant when the allotment order was passed It was also found that the notice In respect of the proceedings tor allotment were served on Mastram on 18-4-77 fixing 20-4-77 for the hearing of the application. Since Mastram was at that time at a place in district Vishidha (Madhya Pradesh), it was impossible for him to attend the hearing fixed for 20-4-77. It was concluded that the grant of time of only two days to the landlord when he was not at Jhansi could not be deemed to be reasonably sufficient. It the circumstances the first appellate court came to the definite conclusion that the order of allotment dated 16-7-77 was without jurisdiction, null and void. The plea raised by the defendant that the suit was defective for non-joinder of necessary parties and was barred under section 34 of the Specific Relief Act were also negatived.