RAJA RAM Vs. NAGAR MAHAPALIKA KANPUR AND

JUDGEMENT

(1.) THIS second appeal arises out of a suit which the plaintiff-appellant filed seeking a permanent injunction to restrain defendant No. 1 Nagar Maliapalika from taking forcible possession of quarter No. 2, block No. 61 of S. D. Colony, Shastri Nagar, Kanpur. The suit was brought with allegations that the aforesaid quarter was rented out at Rs. 10.00 per month sometime in 1961 by defendant No. 1 Nagar Maliapalika to defendant No. 2 Taliir Alimad. Ever since the very beginning the defendant No. 2 was keeping the plaintiff as his sub-tenant on a monthly rent of Rs. 10.00 with the knowledge of defendant No 1 and with its implied consent. In January 1964, the plaintiff and other sub-tenants received notices from Nagar Maliapalika, Kanpur regarding their occupation of the quarters. The committee of the Nagar Maliapalika wanted to create direct tenancy with the sub-tenants. It was alleged that defendant No. 1 was trying to evict the plaintiff forcibly and illegally and hence the suit.

(2.) THE defendant No. 1 in its written statement contended that the quarter was allotted to defendant No. 2 on Rs. 13.50 per months rent and as certain amenities were not provided in the beginning, a rent of Rs. 10.00 per month was charged for such period as the amenities were not provided. The creation of any sub-tenancy with the implied consent of the answering defendant was denied. It was asserted that the committee wanted to create direct tenancy with those unauthorised occupants who were dehoused persons for whom the quarters were really meant. It was contended that the allotment in favour of defendant No. 2 was on the express condition that he will not assign, sublet or transfer his right in part or in whole. It was discovered on 26th December, 1963 that the defendant No. 2 had sublet his quarter to the plaintiff. Raja Ram, the plaintiff, was, therefore, called upon to appear before the committee and since he was not a dehoused person, he was treated as a trespasser and his illegal occupation was not recognised. It was alleged that the plaintiff being a trespasser, he was not entitled to the equitable relief of injunction and not being a tenant was not entitled to maintain the suit. Certain other pitas were taken which it is not necessary to notice in this appeal.

(3.) IN A.I.R, 1972 S.C. 2299 (supra), it has been laid down as under: "He can, on strength of his possession resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession." In 1961 A.L.J. Summary page 50 (supra), it was observed: "Without determining tenancy his right of re-entry does not accrue." It was a suit for ejectment in which these observations were made. In A.I.R. 1968 S.C. 620, it was laid down as under: "Under section 82 (3) Qanoon Ryotwari, the right of a khatedar is extinguished if the khatedar keeps in arrears the land revenue of his khata but there is no automatic extinguishment of his right because sec. 137 of Qanoon Ryotwari enables the collector to accept arrears if the khatedar is a good payer (khush-dehanda) and there are special reasons beyond his control for not paying the land revenue. Whenever there are arrears of land revenue, the landlord cannot take possession forcibly but has to take action for dispossession under section 137. Section 163 cannot be interpreted to mean that in a proceeding under that section it is not sufficient to determine the question of de facto possession alone but it is also necessary to enquire as to whether this possession is or is not wrongful. Further section 163 of Qanoon Ryotwari clearly provides for suits so the nature described in section 326 of Qanoon Mai. Section 326 is very similar to section 9 of the Specific Relief Act, 1877 and the words "disturbed unlawfully" in section 326 mean "disturbed not in due course of law."