M.P.Mehrotra, J. - (1.) THIS second appeal arises out of a suit which the plaintiff-appellant filed seeking a permanent injunction to restrain defendant No. 1 Nagar Maliapalika from taking forcible possession of quarter No. 2, block No. 61 of S. D. Colony, Shastri Nagar, Kanpur. The suit was brought with allegations that the aforesaid quarter was rented out at Rs. 10.00 per month sometime in 1961 by defendant No. 1 Nagar Maliapalika to defendant No. 2 Taliir Alimad. Ever since the very beginning the defendant No. 2 was keeping the plaintiff as his sub-tenant on a monthly rent of Rs. 10.00 with the knowledge of defendant No 1 and with its implied consent. In January 1964, the plaintiff and other sub-tenants received notices from Nagar Maliapalika, Kanpur regarding their occupation of the quarters. The committee of the Nagar Maliapalika wanted to create direct tenancy with the sub-tenants. It was alleged that defendant No. 1 was trying to evict the plaintiff forcibly and illegally and hence the suit.
(2.) THE defendant No. 1 in its written statement contended that the quarter was allotted to defendant No. 2 on Rs. 13.50 per months rent and as certain amenities were not provided in the beginning, a rent of Rs. 10.00 per month was charged for such period as the amenities were not provided. The creation of any sub-tenancy with the implied consent of the answering defendant was denied. It was asserted that the committee wanted to create direct tenancy with those unauthorised occupants who were dehoused persons for whom the quarters were really meant. It was contended that the allotment in favour of defendant No. 2 was on the express condition that he will not assign, sublet or transfer his right in part or in whole. It was discovered on 26th December, 1963 that the defendant No. 2 had sublet his quarter to the plaintiff. Raja Ram, the plaintiff, was, therefore, called upon to appear before the committee and since he was not a dehoused person, he was treated as a trespasser and his illegal occupation was not recognised. It was alleged that the plaintiff being a trespasser, he was not entitled to the equitable relief of injunction and not being a tenant was not entitled to maintain the suit. Certain other pitas were taken which it is not necessary to notice in this appeal. The trial court thed the suit and dismissed the same. The trial court gave a finding that the plaintiff had been inducted by defendant No. 2 without consent express or implied of the defendant No. 1, Nagar Maliapalika, and that this was against the express terms on the basis of which the quarter was let out to defendant No. 2 by the Nagar Maliapalika. The plaintiff, therefore, was held not entitled to claim any injunction. It seems that in the trial court, in his statement under Order X Rule 2 C. P. C. the plaintiff stated that he was a joint tenant along with defendant No. 2 and not a sub-tenant of the said defendant. Thereafter, he moved an amendment application for getting the plaint amended but the amendment application was rejected on the ground that the plaintiff could not be allowed to change the nature of his suit in such a drastic manner. It will thus be seen that the plaintiff s stand in the trial court was wholly contradictory and inconsistent. While in the pleadings, he asserted the case of sub-tenancy, in his statement under Order X Rule 2 C,P.C. he claimed cotenancy rights. The finding of fact recorded by the trial court is that he was neither a sub-tenant nor a cotenant of the defendant No, 2. The lower appellate court affirmed the findings recorded by the trial court and dismissed the plaintiff s appeal. In the second appeal, the learned counsel for the appellant has raised a contention that unless the tenant in chief was ejected, the plaintiff could not be evicted, whatever the latter's status might be whether he was a cotenant or a sub-tenant or a licencee of the defendant No. 2. It is not necessary to examine the validity of that question as we are not dealing with a suit for the eviction of the plaintiff, it is a suit where the plaintiff seeks the equitable relief of injunction against defendant No. 1, The learned counsel has placed reliance on certain authorities which are noted below:- 1. M. Kalloppa Setty v. M. V. Lakshminarayan Rao, A.I.R. 1972 S.C. 2299. 2. Rajendra Nath Razdan v. Lalli Devi, 1961 A. L. J. Summary 50. 3. Brigadier K. K. Vertna and another v. Union of India and another, A.I.R. 1954 Bombay 358. 4. Lallu Yeshwant Singh (dead) v. Rao Jagdish Singh and others, A.I.R. 1968 S.C. 620. 5. Andrappa Big Sankappa v, Narsighro Ramchandra Hebliker and another, l.L.R. XXIX Bombay Series 213.
(3.) IN A.I.R, 1972 S.C. 2299 (supra), it has been laid down as under: "He can, on strength of his possession resist interference from defendant who has no better title than himself and get injunction restraining defendant from disturbing his possession." In 1961 A.L.J. Summary page 50 (supra), it was observed: "Without determining tenancy his right of re-entry does not accrue." It was a suit for ejectment in which these observations were made. In A.I.R. 1968 S.C. 620, it was laid down as under: "Under section 82 (3) Qanoon Ryotwari, the right of a khatedar is extinguished if the khatedar keeps in arrears the land revenue of his khata but there is no automatic extinguishment of his right because sec. 137 of Qanoon Ryotwari enables the collector to accept arrears if the khatedar is a good payer (khush-dehanda) and there are special reasons beyond his control for not paying the land revenue. Whenever there are arrears of land revenue, the landlord cannot take possession forcibly but has to take action for dispossession under section 137. Section 163 cannot be interpreted to mean that in a proceeding under that section it is not sufficient to determine the question of de facto possession alone but it is also necessary to enquire as to whether this possession is or is not wrongful. Further section 163 of Qanoon Ryotwari clearly provides for suits so the nature described in section 326 of Qanoon Mai. Section 326 is very similar to section 9 of the Specific Relief Act, 1877 and the words "disturbed unlawfully" in section 326 mean "disturbed not in due course of law.";