S.N. Katju, J. - (1.) THE Plaintiff -Respondent instituted the suit in appeal for possession of a portion of house no B6/112, Pitambarpura, Kedar Ghat, Varanasi and for recovery of Rs. 60/ - by way of damages for unauthorised use and occupation of the aforesaid accommodation from 17 -4 -63 to 15 -5 -63. Briefly put, the Respondent alleged that he was the owner in exclusive possession of the aforesaid house which was never let out on rent. The Appellant had approached him with a request that he be given some accommodation in the premises in suit till the end of March 1963. The Respondent acceded to the request of the Appellant and allowed him to occupy two rooms on the ground floor of the premises and also to share a common bath room and toilet, The Appellant occupied the aforesaid accommodation in September 1962. The Appellant however gave a notice to the Respondent on 30 -3 -63 in which he asserted his claim of tenancy over the portion of the house occupied by him. The Respondent revoked the licence on 4 -4 -63. Meanwhile on 1 -4 -63 (the Appellant had applied to the RC and EO for the allotment of the premises under his occupation and the suit in appeal was instituted on 15th May 1963. On 10 -10 -63 the accommodation in suit was allotted to the Appellant by the Rent Control Officer. The trial court dismissed the suit but its decision WEIS reversed on appeal by the learned 4th Addl. Civil Judge, Varanasi who decreed the suit for possession over the disputed premises.
(2.) LEARNED Counsel for the Appellant contended that the accommodation in the occupation of the Appellant was vacant and the Rent Control and Eviction Officer was fully competent to allot it to the Appellant. He argued that the Appellant was not a licensee of the Respondent but was his tenant and further that in view of the aforesaid allotment in his favour by the Rent Control and Eviction Officer he could not be ejected from the premises in suit. He relied on the order of the Rent Control and Eviction Officer which refers to the report of an Inspector -saying; that the accommodation in suit had been allotted earlier to one Sri Sur and that some other persons were also occupying it. Neither the Inspector was produced in evidence nor any order of allotment in favour of Sri Sur or any other person who were said to have occupied portions of the premises in suit as tenants was produced in evidence by the Appellant. The court below has observed: The court finds that the Appellant's oral evidence establishes to the hilt that he had granted a licence to the Respondent in respect of the premises which were occupied by him. I fully agree with the finding of the learned Judge that the Appellant was only a licensee of the Respondent. The learned Judge has further observed: It is a fact that the owner has been occupying the house himself. It is not the case here that he may have ceased to occupy any portion of that house. The portion of the house was not even let out to the Respondent. The granting of a licence will not turn it into a case of lease. It has not been proved that any portion of the house was ever let out in the past. The sum and substance of the entire discussion is that the portion occupied by the Respondent was not vacant in the eye of law and therefore the RC and EO had no jurisdiction to make an allotment in favour of the Respondent. The Court finds that the allotment order dated 10 -10 -1963 being in excess of the jurisdiction of the statutory authority was illegal and ultra vires it is therefore a nullity. Learned Counsel for the Appellant relied on two decisions of this Court in Lachhmi Narain v. Rent Control and Eviction Officer, 1957 AWR 455 and Dwarka Nath Tandon v. R.P. Khanna, 1958 AWR 273 in support of his contention that the mere fact that the Appellant was in occupation of the premises in suit was sufficient for the premises in suit being treated as vacant and for empowering the Rent Control and Eviction Officer to allot it in his favour. In Lachmi Narain's case (supra) the premises had been allotted to a tenant and were in his occupation. A third person had been admitted into possession in whose favour the allotment was made. It was held that under the circumstances the allotment could be made in favour of the person who was in possession of the premises. Admittedly the premises had been allotted to a tenant and the subsequent allotment had been made after the tenant had gone out even though he had himself admitted a third person into possession of the said premises in whose favour the allotment was made. In the present case the circumstances are entirely different. The premises had never been allotted in favour of any tenant and the Appellant was permitted to occupy a portion of the premises only as a licensee. No right has been created in favour of the Appellant and under the circumstances it could not be held that the premises had become vacant. In Dwarka Nath Tandon's case (supra) the premises were occupied by a trespasser after it had been vacated by the tenant. The court held that the possession of a trespasser could not be taken into account and the premises would be treated as vacant thus enabling the Rent Control and Eviction Officer to allot it in favour of another person. The circumstances of the aforesaid case are entirely different from those of the case before me.
(3.) IT must, be held that the accommodation occupied by the Appellant could not be treated as vacant and the Rent Control and Eviction Officer had no power to make an allotment in favour of the Appellant. I fully agree with the decision of the court below.;