- (1.) The landlord-respondents filed Suit No. 49 of 1974 for ejectment of petitioner-tenants from House No. 120/1, Dondipur, Allahabad alleging that they are tenant of second floor of the said house. Petitioners admitted the tenancy but stated that they are in possession of certain accommodation at first floor and a tin shed on the second floor. It is admitted that from the pleading of parties, no issue was framed with respect to the part of accommodation available with the petitioner-tenants in house in question and it appears that Courts below framed the issues, besides others, whether the ejectment of petitioners from house in question would be justified or not. The following six issues were framed: (1) Whether there exists no relationship of landlord and tenant between the parties? (2) Whether the Rent Control Act No. XIII of 1972 is applicable to the premises in suit or not? (3) Whether the defendant has committed default in payment of rent, if so since when. (4) Whether the disputed notice is illegal? (5) Relief? (6) What is the rate of rent? The Trial Court decreed the suit vide judgment dated 18.11.1983 with the following order: The suit for ejectment is decreed. As regards arrears of rent and damages, suit for arrears of rent etc. from 7.4.73 to August, 1973 at the rate of Rs. 78/- per month and from September, 1973 onwards till the filing of the suit at the rate of Rs. 48/- per month is decreed with cost. The plaintiff shall get pendente lite and future damages at the rate of Rs. 48/- per month till eviction on payment of requisite Court fees. The plaintiff may withdraw the amount deposited in the Court at the aforesaid rate on proper application which may be adjusted towards decretal amount.
(2.) Petitioner-tenants filed Revision No. 544 of 1983 which was allowed and the Trial Court's decree was set aside and suit was dismissed vide judgment dated 6.4.1985. The matter came to this Court on landlords' Writ Petition No. 10618 of 1985, Jamal Ahmad v. Second A.D.J. Allahabad and another, which has been allowed vide judgment dated 6.9.2005 and the Revisional Court's judgment was set aside and Trial Court's judgment was restored. The operative part of judgment dated 6.9.2005 reads as under: Accordingly, writ petition is allowed. Judgment and order passed by the Revisional Court is set aside. Judgment and decree passed by the Trial Court is restored. Tenant-respondents are granted six month's time to vacate provided that within one month from today they file an undertaking before the J.S.C.C to the effect that on or before the expiry of the aforesaid period of six months they will willingly vacate and handover possession of the property in dispute to the landlord-petitioner. For this period of six months tenants-respondents shall deposit Rs. 3,000/- as damages for use and occupation (at the rate of Rs. 500/- per month) before the J.S.C.C. which shall at once be paid to the landlords-petitioners. Tenant-respondents are also directed to deposit within one month the entire decretal amount due till date after deducting any amount already paid/deposited before the Trial Court for immediate payment to the landlords-petitioners. In case of default in compliance with either of these conditions tenants-respondents shall be evicted through process of Court after one month.
(3.) Still tenants did not vacate the premises in question whereafter the execution proceeded. Petitioners raised objection that the suit has been decreed treating them tenants of second and third floor of house though petitioners in their tenancy have first floor and tin shed on second floor and the tin shed had fallen down in the meantime, no possession of petitioners is continuing on the second floor and so far as the first floor is concerned, there is no decree against them, hence they cannot be evicted therefrom. The Court below has rejected the said objection by means of the impugned order observing that the suit for ejectment has been decreed and what has been considered second and third floor by the landlords has been treated to be first and second floor by the petitioners. But the fact remain that this is the only premises available with petitioners in the house in question in respect whereto their ejectment has been allowed in the aforesaid proceedings. This fact could not be disputed by the petitioners.;