Banney and Others vs Ist A.D.J.,Moradabad and Others

Sudhir Narain, J.—This writ petition is directed against the order dated 2191981 passed by respondent No. 1 allowing the revision and decreeing the suit of the plaintiffrespondents.

The facts of the case in brief are that respondent No. 2 filed suit No. 290 of 1974 against respondents 3 and 4 and the petitioners, for recovery of arrears of rent, ejectment and damages on the allegation that he had let out the disputed premises to defendants 1 and 2 (respondents 3 and 4 herein) on monthly rent of Rs. 25. They did not pay the rent. Notice demanding the arrears of rent was sent but they did not comply with it. It was further stated that they had sublet it to defendants 3 to 9. The defendants 1 and 2 and 9 did not contest the suit. The trial Court dismissed the suit on the finding that certain constructions were raised by defendants 3 to 9 and, therefore, there was no relationship of landlord and tenant. The plaintiffrespondents filed revision against this order. Respondent No. 1 allowed the revision and recorded finding that defendants 1 and 2 were parties in the earlier suit No. 484 of 1968 and that finding is binding upon them. It was not established that defendants 3 to 9 had right over the property in dispute and it shall be deemed that the disputed property was sublet to them by the defendants 1 and 2. This order has been challenged by the petitioners. Defendants 1 and 2 have not filed writ petition against this judgment.

I have heard the learned Counsel for the parties. The suit was filed by the plaintiff respondent on the allegation that defendants 1 and 2 were tenants of the disputed premises. The plaintiff had filed suit No. 484 of 1968 against them which was decreed for recovery of rent but suit was dismissed for ejectment on the ground that notice was defective. The finding as against them is binding. The trial Court was not justified in dismissing the suit against them. Defendants 1 and 2 had also not filed written statement in the suit. The contention of other defendants was that they were not parties in the suit No. 484 of 1968 and, therefore, the finding is hot binding upon them. The question is as to whether the defendants 1 and 2 were tenant in the premises in question was dependent on the fact as to whether there was contract between the plaintiff and defendants 1 and 2. The findings recorded in suit No. 484 of 1968 are binding against them. The findings of revisional Court to the extent that defendants 1 and 2 are tenants of the premises in question does not suffer from any illegality.

Second question is as to whether the accommodation was sublet to defendants 3 to 9. The trial Court had recorded finding that defendants 3 to 9 had raised construction over the land in dispute and there was no relationship of landlord and tenant between the plaintiff and defendants and they were also not sub tenant of the construction raised by them. The question as to what was the extent accommodation let out to the defendants 1 and 2 was necessary to be determined. In case the landlord had let out certain accommodation to defendants 1 and 2 and that included land also and such tenant had permitted other persons to raise construction, the persons occupying the land cannot claim any independent right. It is to be examined as to whether such defendants shall be treated on the facts and circumstances of the case as subtenants. The revisional authority was, however, not entitled to examine the question of fact which requires appreciation of evidence in this respect. He should have remained the matter.

In view of the above, the writ petition is partly allowed and the order dated 2191981 of respondent No. 1 is hereby quashed, subject to the observations made above. The trial Court will re examine the matter and if necessary can take additional evidence in the case which may be submitted by the parties. As the matter is old, the trial Court shall decide the suit within six months from the date of production of a certified copy of this order before it. ''

Considering the facts and circumstances of the case the parties shall bear their own costs.