RAM PRAKASH Vs. SHAMBHU DAYAL AGARWAL

JUDGEMENT

(1.) This is a defendant's second appeal against a decree for ejectment. It is necessary to state very briefly the facts which have led to this appeal. Sri Sharnbhu Dayal, the plaintiff respondent is the owner of bunglow No. 306 in the Civil Lines, Jhansi. It was let out to Sri Sudhundar Kumar Varma defendant-appellant No. 1. It is common ground that, after the partition of India, his brother-in-law Ram Prakash came from Pakistan to live with him at Jhansi. He is defendant No. 2 in the suit for ejectment and a pro forma respondent in the appeal. He has also filed an appeal against the decree for ejectment on his own behalf. Both these appeals are being heard together and this judgment will govern both. The whole controversy centres round the terms and conditions under which Ram Prakash, the refugee from Pakistan, was admitted into the house by his brother-in-law. Sri S.K. Varma the appellant. It is common ground that Ram Prakash came to live with his brother-in-law about 1948-49, that the latter shifted into another house with his wife but his children continued to live in the same house. It is also conceded by both counsel that the landlord made an application in 1949 before the Rent Control and Eviction Officer asking for the ejectment of Ram Prakash on the ground that, after the tenant had left the house with his wife. Ram Prakash was occupying it as an unauthorised person. It is also not in dispute that the Rent Control and Eviction Officer rejected the application on the ground that as long as the tenant or any member of His family continued to live in the house and paid rent, the house would not be deemed to have been vacated. That officer also observed that Ram Prakash was the brother-in-law of the tenant and had been sharing the house intimately with him, and that therefore he would be treated as a member of the family and the question of the owner driving him out of the house did not arise. It is also a fact that in 1950 the landlord made another application for the ejectment of the tenant on the ground that he wanted the accommodation for his own use. This too was rejected by the Rent Control and Eviction Officer on the ground that he was living in One of his own houses and that some of the members of the tenant were still occupying the house and, therefore, permission for ejectment could not be granted. Subsequently, in 1954 the landlord made another application for the eviction of the tenant which again was rejected on the ground that it was open to the landlord to file a suit for ejectment if his case was that the tenant had sub-let the house without his permission. Thus, it is clear that by the end of 1954 the efforts of the landlord to reoccupy the house, either on the ground of his own need or on the allegation of sub-letting against the tenant, were unsuccessful.

(2.) On 20th May, 1954 the landlord filed the present suit for ejectment on two grounds -- (1) that the tenant had defaulted in payment of rent and (2) that he had sub-let the house to his brother-in-law Ram Prakash without the landlord's permission. The trial court held that there had been no default in payment of rent but that there had been an unauthorised sub-letting of the house by the [tenant. Accordingly, he decreed the suit for ejectment. On appeal, the learned Civil Judge, Jhansi upheld both findings -- that is to say, he too held that there had been no default in payment of rent and that the tenant had sub-let the house without the permission of the landlord. Accordingly, he dismissed the appeal and confirmed the decree for ejectment. Against this decision the tenant S.K. Varma has come to this Court in Second Appeal.

(3.) Mr. Baleshwari Prasad, learned counsel for the appellant, urged that the findings of both the courts that there had been an illegal sub-letting was wrong in law. He contended that the question whether the relationship between two parties amounts to a tenant is a mixed question of law and fact and that this court can re-examine the evidence in Second Appeal. He referred to one or two authorities of this Court in support of his argument. On the other hand, learned counsel for the respondent has argued that the case is concluded by findings of fact and this Court should not re-open the question of sub-tenancy in Second Appeal. In my view, Mr. Baleshwari Prasad's contention is right. Whether a certain set of facts existed or not is a matter for the lower appellate court to decide and its verdict would be binding on the High Court in Second Appeal; but whether the facts found by that lower Court constitute a relationship of sub-tenancy or of landlord and tenant between the parties is a question of law, and if the lower courts have come to an erroneous conclusion on this point, the High Court can interfere in Second Appeal. I shall, therefore, consider whether, on the facts found by the lower appellate court, its finding that the house in dispute had been sub-let by the tenant is correct in law.