UMAR DARAZ AND OTHERS Vs. NIHAL SINGH AND ANOTHER
LAWS(ALL)-1965-5-18
HIGH COURT OF ALLAHABAD
Decided on May 03,1965

Umar Daraz And Others Appellant
VERSUS
Nihal Singh And Another Respondents

JUDGEMENT

S.S. Dhavan, J. - (1.)THIS is a Plaintiff's second appeal from the decree of the Civil and Sessions Judge of Meerut reversing that of the City Munsif, Meerut and dismissing the Appellant's suit tor the ejectment of the Defendants. The Plaintiffs alleged that they are the owners of the land on which three houses are situate; that the Defendants are their tenants at will, the agreed rent being -/4/ - per month; that the tenancy is from month to month; that the Plaintiffs wanted the land for their own use and terminated the tenancy and asked the Defendants to vacate; that the Defendants refused to do so; hence this suit.
(2.)THE Defendants resisted the suit and denied that the Plaintiffs are the owners of the land. They alleged that there are several co -sharers in the land and the Plaintiffs alone had no tight to sue for possession. They also pleaded that their predecessors had taken the land from the zamindars a hundred years ago and constructed houses on them under a license from the landlord. They claimed the rights of permanent licensees under an irrevocable license. They also claimed to have perfected their title by adverse possession. In the alternative they pleaded that the suit was barred Under Section 3 of the U.P. Control of Rent and Eviction Act which, according to them, applied to the houses in which they lived. The trial court held that the Plaintiffs were the owners of the land and the Defendants their tenants. Rejecting all the pleas of the Defendants it held that the Plaintiffs were entitled to terminate the tenancy and sue for ejectment. Accordingly it decreed the suit.
On appeal the learned Judge held that the relationship between the Plaintiffs and the Defendants was not that of landlord and tenant but of licensor and licensee, and as the license was irrevocable, the defendants could not be ejected. He allowed the appeal and dismissed the Plaintiff's suit who have come to this Court in second appeal.

(3.)MR . K.C. Agarwal urged two points in support of this appeal. First he argued that the question of the relationship between the parties had already been decided in a previous suit filed by the Plaintiffs for recovery of rent and its reconsideration in the present suit was barred under the principle of res judicata. Learned Counsel read out the judgment in the previous suit. It was held by the court in that suit that neither party had been able to establish his case, that the Plaintiffs had not proved the relationship of the landlord and tenant nor the Defendants their title by adverse possession, and in these circumstances it held that the Defendants must be either licensees or the lessees. This finding was quite sufficient for the recovery of rent at the rate of -/4/ - rent as in the present suit. It is well known that rent may be payable even by a licensee, and therefore the courts finding that the Defendants were either lessees or licensees was sufficient to decide the suit. The Court however made an observation that it was inclined to believe that the Defendants were licensees, and this observation is relied upon by Mr. K.C. Agarwal for his plea of res judicata. In my opinion, no such plea can be founded on that observation. The question whether the Defendants were licensees was not in issue between the parties and was not necessary for the decision of the case. The court's observation does not operate as res judicata on the question of the Plaintiff's status as licensees.
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