RAMJI LAL Vs. BALWANT SINGH AND ORS.

JUDGEMENT

(1.) This is a Defendant's second appeal from the decree of the Civil Judge of Saharanpur affirming that of the Munsif Haweli Saharanpur decreeing the Plaintiff -Respondents' suit for the recovery of possession of a shop. This shop is situate in the city of Hardwar. The entire dispute centres, round the validity of an order purporting to "allot" this shop under Sec. 7(2) of the UP Control of Rent and Eviction Act. As there have been several persons claiming the rights of tenancy, a number of suits have been filed by different persons at different times. The shop is owned by an institution called The Akhara Panchayati Niranjani (to be called the Akhara). It is common ground that in the beginning one Jiwan Das was the tenant of this shop. He was a proforma Defendant in the suit and is a pro forma Respondent in this appeal. On 28th July, 1954 the shop was "allotted" by the Resident Magistrate, Hardwar, Under Sec. 7 of the UP Control of Rent and Eviction Act (to be called the Act) to Ramji Lal who is the principal Defendant in the suit and the sole Appellant in this appeal. The order stated that the shop was in the tenancy of Jiwan Das but occupied by one Hari Ram. There was resistance to this "allotment", resulting in litigation, civil and criminal. Delivery of possession to Ramji Lal was held up for nearly a year after the allotment, but ultimately Hari Ram the alleged occupant, was evicted under Sec. 7A of the Act and on 22nd April, 1955 the Appellant Ramji Lal put in possession with the aid of the Police. This however did not end the trouble, because Jiwan Das the original tenant took the law in his own hands and tried to oust the Appellant Ramji Lal. This led to his prosecution under Sec. 448 of the Penal Code and also proceedings Under Sec. 145 Code of Criminal Procedure. This was in 1958 -four years after the passing of the allotment order and three years after the Appellant Ramji Lal had been put in possession. The proceedings under Sec. 145 Code of Criminal Procedure resulted in favour of the Appellant on 2nd August, 1958 when the Resident Magistrate held the Appellant Ramji Lal entitled to possession and directed possession to be delivered to him. The prosecution of Jiwan Das under Sec. 448 resulted in his conviction but as he confessed his guilt and threw himself at the mercy of the court, he was only imprisoned till the rising of the court.

(2.) At the last stage of the proceedings under Sec. 145 Code of Criminal Procedure the Plaintiff -Respondent Balwant Singh came on the scene and made an application alleging that the possession of the shop had been delivered to him by the Kurk Amin of the Civil Court by virtue of a compromise in the Civil proceedings. The application was not supported either by an affidavit or any evidence or any order of the Civil Court and the Magistrate disbelieved Balwant Singh and directed the delivery of possession of the shop to the Appellant Ramji Lal. On the next day -3rd of August, 1958 -Balwant Singh filed the present suit which has been decreed by both the courts below and resulted in this second appeal.

(3.) In his plaint, the Respondent Balwant Singh alleged that the shop belonged to the Akhara; that in the beginning Jiwan Das was the tenant under a monthly tenancy; that the Plaintiff entered into a partnership with Jiwan Das whereupon the Akhara filed a suit for the ejectment of Jiwan Das in 1956; that this suit was decreed and the decree for ejectment put in execution, but the Plaintiff Balwant Singh filed an objection which resulted in a compromise; that under the terms of this compromise the Akhara recognised the Plaintiff Balwant Singh as their tenants on payment of rent; that the Plaintiff had learnt shortly before the suit that the Defendant Ramji Lal procured in his favour an allotment order dated 28th July, 1954; that this order was obtained by suppressing the fact that the shop was not vacant and misleading the authorities; that the Plaintiff had always been in possession -first as a partner of Jiwan Das and afterwards as the sole tenant after Jiwan Das had left the business and vacated the shop. The Plaintiff contended that the order of allotment was void, illegal and of no effect. He asked for a decree for delivery of possession of the shop to him. The Plaintiff had impleaded four persons as Defendants -the Akhara, Jiwan Das, Appellant Ramji Lal and one Jawahar Lal who had been appointed as supurdar in the proceedings under Sec. 145 Code of Criminal Procedure. But the suit was contested only by the Appellant Ramji Lal and the other three Defendants did not appear. Ramji Lal denied the allegations of the Plaintiff and gave his own version. He alleged that Jiwan Das the original tenant, left the shop but put an unauthorised person, one Hari Ram, in possession; that the shop was treated as vacant and "allotted" to the Appellant Ramji Lal under the allotment order dated 27th July, 1954; that Jiwan Das, at the instigation of Hari Ram filed a collusive suit (No. 156 of 1955) challenging the validity of allotment order but it was dismissed for want of notice under Sec. 80 Code of Civil Procedure; that Jiwan Das then filed another suit (No. 559 of 1956) for the same relief and on the same allegations, but after serving notice under Sec. 80 Code of Civil Procedure, but it was dismissed for default; that after this Hari Ram persuaded the landlord (the Akhara) to file a fictitious suit for the ejectment of Jiwan Das on the ground of non -payment of rent, but as the suit was collusive it was not defended by Jiwan Das and resulted in an ex parte decree for ejectment; that during the execution proceedings in pursuance of this collusive decree the Plaintiff Balwant Singh entered into some kind of a compromise agreement with the landlord which was fictitious and conferred on him no right whatsoever. The Appellant contended that the Plaintiff Balwant Singh never acquired any rights in the shop in dispute, he had no locus standi as a Plaintiff and was incompetent to challenge the validity of the allotment order dated 27th July 1954.