- (1.) JUDGEMENT MATHUR, C.J. :- This order shall govern Special Appeals Nos. 688 of 1972 and 69 and 77 of 1973 and also the Writ Petition No. 3243 of 1972, F. A. F. O. No. 251 of 1972 and Civil Revision No. 875 of 1972 arising out of the same case.
(2.) THE material facts of the case are that Jarao Building situate at Morris Road in the city of Aligarh was in the tenancy of the successive Agents of the State Bank of Aligarh for a long period and the last Agent who occupied the accommodation was S. D. Nayar. The building was purchased by Hari Nandan Agarwal and Smt. Madhu Agarwal (hereinafter to be referred as the applicants) in the month of December, 1971. S. D. Nayar was under orders of transfer and his successor M. L. Sharma arrived in Aligarh to take over charge. The handing over of the charge by the Agent takes many weeks S. D. Nayar permitted M. L. Sharma to occupy two of the rooms of this building. Another room was in the occupation of the son of the previous Agent and a Kothari in the occupation of the driver, Bargad Masih. M. L. Sharma arrived in Aligarh in the middle of January 1972 and the handing over of the charge was complete on the 19th of February, 1972. On that date, S. D. Nayar sent his luggage by truck to Delhi. There exists controversy as to whether the whole of the luggage had been sent or only a part and also whether S. D. Nayar continued to occupy the building after this date. There is, however, no controversy in that S. D. Nayar occupied the building as a tenant upto 19-2-1972 and the other persons, referred to above, were living in a few rooms or a Kothari as licencees with the permission of S. D. Nayar. To avoid repetition and to give facts in the correct perspective it may here be mentioned that in the sale deed executed in favour of the applicants the house was shown to be in the tenancy of the State Bank of India. The case of the petitioners, on the other hand, is that S. D. Nayar was the tenant in his personal capacity. S. D. Nayar and M. L. Sharma have taken a case one may say, in the alternative. Firstly, that the tenancy was in favour of the State Bank of India, or of the Agent, State Bank of India, by designation and not by name and, secondly, that S. D. Nayar never vacated the accommodation and continues to be its tenant.
(3.) THE applicant case further is that while vacating the building on 19-2-1972. S. D. Nayar handed over possession to the applicants and they as owners occupied the building other than the two rooms in the occupation of M. L. Sharma and one Kothari in the occupation of Bargad Masih, which they could do due to the fact that they had already moved an application for release of the accommodation in their favour and by that time no order of allotment had been passed by the District Magistrate. The case of M. L. Sharma, on the other hand, is that the applicants had not entered into actual possession on the 19th February, 1972, and it was on the 20th February in his absence that they forcibly and wrongfully occupied the building. That morning M. L. Sharma had gone to Agra to attend a seminar and when he returned in the evening he found the applicants and their family members to be in wrongful occupation of the building. M. L. Sharma thereupon lodged a report with the police making allegation that the applicants and others had committed house trespass. S. D. Nayar was then in Delhi and he was contacted on telephone. He arrived in Aligarh on the 21st of February, when he also lodged a report with the police.;