GULAB DEVI Vs. BHOLA RAM

JUDGEMENT

(1.) The dispute in this appeal relates to a shop situate in the City of Mathura. It forms part of a house which was once owned by Raghunath Prasad. The said house was usufractuarily mortgaged by Raghunath Prasad to Smt. Gulab Devi in 1952. A creditor of Raghunath Prasad obtained a decree and in execution of the said decree, the house was put to sale. In the execution sale, Smt. Gulab Devi, mortgagee, purchased the said house on 31.5.1962. It appears that Raghunath Prasad was in possession of the shop and Smt. Gulab Devi, the mortgagee, had filed a suit for recovery of rent from Raghunath Prasad allegedly to be a tenant of the shop. Ragunath Prasad in that suit denied that he was the tenant and pleaded that he had been in possession of the shop as owner. This plea of Raghunatyh Prasad prevailed and Smt. Gulab Devi lost the suit. The matter came up in second appeal to this Court and the suit was dismissed. Thus the relationship between Smt. Gulab Devi and Raghunath Prasad was not that of landlord and tenant. After the execution sale Raghunath Prasad informed the Rent Control and Eviction Officer that he was vacating the shop. Petitioner, Bhola Ram, then made application for allotment of the shop. The Rent Control and Eviction Officer allotted the shop to Bhola Ram on 16th July, 1962. Smt. Gulab Devi filed objection before the Rent Control and Eviction Officer. For petition possession of the shop as an auction purchaser, she took proceedings under Order 95 Rule 27 CPC before the Civil Court. In that proceedings Raghunath Prasad took the plea that he was the tenant in the shop, therefore, he could not be evicted in the execution proceedings at the instance of the auction purchaser. That dispute came to the High Court in revision and it was held that Raghunath Prasad was bound by his plea set up in the previous suit and he could not heard to say that he was a tenant. Smt. Gulab Devi at later stage filed an application before the Rent Control authorities that the order of allotment in favour of Bhola Ram was passed behind her back and was obtained by the said Bhola Ram on mis-representation of facts. But these objections of her did not prevail and were rejected. Smt. Gulab Devi then filed an application under Section 3 of the Rent Control Act for permission to a file suit for eviction against Bhola Ram. This application was rejected by the Rent Control and Eviction Officer. A revision against it was also rejected by the Commissioner. Smt. Gulab Devi then filed a revision under Section 7-F of the said Act before the State Government. This revision was allowed by the State Government and the allotment order passed in favour of Bhola Ram was set aside. This led Bhola Ram to file a writ petition in this Court praying for a writ of certiorari quashing the order of the State Government cancelling the allotment of the shop in dispute. The learned Single Judge who heard the petition took the view that the order of the State Government was manifestly erroneous inasmuch as it was its duty to decide on merit that Raghunath Prasad was a tenant as the decision of High Court in second appeal was not binding on Bhola Ram. The learned Single Judge, took the view that in any case there was a factual vacancy Raghunath Prasad was to vacate the shop after it had been purchased by Shrimati Gulab Devi in the execution sale and this factual vacancy was sufficient to jurisdiction in the Rent Control authorities to make allotment of the shop. Yet another ground which persuaded the learned Single Judge to quash the order of the State Government which ground was never raised before the State Government and on which the learned Single Judge has based his decision was that Smt. Devi could not be treated as a owner on 16th July, 1972 of the said shop as the sale certificate in her favour was issued on 31.8.1972. The learned Judge quashed the said order and remanded the case to the State Government for reconsideration under Section 7-F of the said Act and directed it to dispose of the case in accordance with the observations made by him. Smt. Gulab Devi has filed special appeal against this judgment of the learned Single Judge.

(2.) We have given our due and anxious consideration to the reasoning which persuaded the learned Single Judge but, to our regret, find ourselves in disagreement with the learned Single Judge's approach to the matter in issue. It is doubtful that the learned Single Judge could have supported his conclusions on a ground which was never raised before the State Government. However, we leave the matter at that. Assuming that a new ground could be raised for the first time in a writ questioning the validity of the impugned order we find that the learned Single Judge was in error in thinking that it was from the date of the sale certificate that the title in the house auctioned passed. The law is settled on this point. It has been held in Janak Rai v. Gurdial Singh and another, 1967 AIR(SC) 608 that the title of an auction purchaser relates back to the date of sale and not to its confirmation. Thus the title passed to Smt. Gulab Devi on 31st May, 1962, the date on which the sale of the house took place. Smt. Gulabh Devi was the owner of the house on 16.7.1972, the date on which the allotment order was passed in favour of Bhola Ram. As regards the question of vacancy, we think the State Government took the correct view in holding that the possession was to pass from the erstwhile owner to the new owner and it was not a case of vacancy which under the law could vest jurisdiction in the Rent Control authorities for making allotment. To our mind the fine distinction between legal vacancy or factual vacancy is hardly helpful. What has to be found is whether there was a vacancy within the meaning of Section 7 of the said Act. When one owner sells an accommodation to another and under the terms of contract delivers possession to the purchaser, in our judgment, within the meaning of Section 7 of the said Act, no vacancy arises. We think the learned Single Judge was in error in this point also. In the view we have taken that there was no vacancy the question whether the decision in second appeal between Smt. Gulab Devi and Raghunath was binding on Bhola Ram or not will have no material bearing. It appears from the record that Raghunath Prasad himself deluded the rent control authorities by representing to them that he was a tenant and there is no doubt that such a representation by Raghunath may have been used as a strong circumstance in making of the allotment order in favour of Bhola Ram.

(3.) For the reasons given above, we allot this appeal and set aside the judgment and order of the Single Judge. The writ petition of Bhola Ram will stand dismissed with costs throughout.