- (1.) S. K. Phaujdar J. The present appeal is directed against the judgment and decree dated 10-10-1989 passed by the 3rd Additional Civil Judge, Mathura, in Civil Appeal No. 83 of 1988. The first appellate court had reversed a decree of dismissal dated 24-3-1988 passed by the IVth Additional Civil Judge, Mathura in O. S. No. 408 of 1986 and decreed the suit of the plaintiff (appellant before the first appellate court) directing the defendant (police department) to deliver vacant possession of the suit property to the plaintiff. By the appellate court decree there was a direction for recovery of damages also.
(2.) SMT. Sudha Devi Bhargawa, the present respondent, was the plaintiff before the court of first instance. Her mother-in-law was the owner of the suit property. As stated in the plaint, in 1972 only one phatak (gate) of the suit property was let out to the police department on a monthly rent of Rs. 60/- and there was a stipulation that the plaintiff would have a right to ingress and egress to and from the property in question through this gate (phatak ). The property consisted of a godown, certain rooms and a court-yard the plaintiff got the property on the strength of a will ex ecuted by her mother-in-law and, it was alleged, that in 1985 the police personnel had occupied the inner portions of the property (which was not let out to them) and had caused substantial damage to the property to the tune of Rs. 5,000/ -. On a notice to vacate the property, the defendants failed to vacate. Section 80, CPC notice also proved futile and the suit was filed for eviction and possession and for damages. The defendants (the present appellant) came out with a case in their written statement that the whole of the suit property including the gate in question was let out to the police department in the year 1975 and eviction was not permissible except under the provisions of the U. P. Act No. 13 of 1972. The trial court held that the tenancy was for the whole of the premises and there was no damage caused to the property by the defendants and, accordingly, the trial court dismissed the suit. The first appellate court, on an appeal by the plaintiff, engaged itself to see when the suit property was given to the defendants for use and occupation in 1972 or 1975. The first appellate court also lays stress on the question of the status of the defendants as tenant, trespasser or a licensee. The first appellate court was of the view that the entire property was given by the plaintiff to the defendants in 1972 and they were in posses sion over the entire property since then. It was, however, of the view that there could not have been any lease as, according to it, a lease could only be created by way of a registered document. The first appellate court was also of the view that Article 299 of the Constitution of India required that all contracts made in exercise of executive powers of a State shall be expressed to be made by the Governor of the State. He came to the conclusion that the possession of the defendant on the suit property was that of a licence and the licence could be revoked at any time even by filing of the suit and, accordingly, the appeal was allowed and the suit of the plaintiff was decreed. It is necessary to mention here that the suit was filed not for the whole of the property but for the inner part of the property only, barring the gate (phatak) which was admittedly under a lease. The appeal was admitted on certain specific questions of law as framed in the grounds of appeal. Those were : (1) If the appellate court erred in law in decreeing an eviction in spite of a concurrent finding that there was no encroachment by the appellant over the property in suit property ; (2) Whether the provisions of the U. P. Act No. 13 of 1972 were applicable to the said premises ; (3) Whether the first appellate court made out a third case deviating from the cases of the parties, and (4) Whether the plaintiff-respondent was estopped in law to challenge the statuts of a tenant that was implicitly accepted by the plaintiff so far the suit-property is con cerned. Arguments were, however, advanced on all the above points together and the learned counsel laid stress on the true interpretation of Article 299 of the Constitu tion of India, as also of Section 107 of the Transfer of Property Act (in short, TP Act) They had relied on case, laws which shall be referred in the next chapter of this judgment. But as the court of second appeal, this Court must guard itself against any possible transgression to the zone of disputed facts. Certain facts have been estab lished by consistent findings of the courts below and the same may not, therefore, be open to criticism except on the application of law on those proven facts. The plaintiff had sued the defendant for the suit property on the ground that only the Phatak was let out to the defendant and the police officials encroached upon the inner portion of the premises also and eviction was sought from the inner portion only. It was the defendant's case that the police department was the tenant for the whole of the premises including the gate and the inner portion. The trial court found that the tenancy was for the whole of the premises and the suit was dismissed as there was no termination of the tenancy as requried under the law. The first appellate court found that the inner portion of the premises (i. e. the suit property) was in occupation of the defendants since 1972 and the whole of the premises was known as Phatak of Bhargawas. The courts below also found that rent was paid for the Phatak of the Bhargawas. The first appellate court, however, came out with a case pleaded by either party. It held that for the inner portion there was no tenancy created as there was no registered agreement, and, accordingly, he held the possession of the defen dant as one of a licensee and permitted eviction of the defendants in that capacity. The trial court as also the first appellate court were concurrent in their findings that there was no encroachment by the appellant in the suit property. Discussions are there by the courts below in their judgments regarding the mode of realisation of rent and there are findings of fact that the son of the plaintiff used to go to the premises to collect the rent and the rent receipts described the tenanted premises as Phatak. Thus, the four points of law as framed in the memorandum of the present second appeal and as mentioned in the page 2 of this judgment converged to only two questions: (1) Whether the first appellate court had rightly interpreted Article 299 of the Constitution and Section 107 of the TP Act? and (2) Whether the defen dant was a tenant in the suit premises?
(3.) LEARNED counsel for the appellant relied on a decision of the Allahabad High Court, as reported in 1981 ALJ 248. There was an oral lease in this case for a building let out to the government. It was held that the Article 299 of the Constitu tion was not applicable. The lease accordingly would not be invalid for non- com pliance of Article 299. Reliance was also placed on a decision of the Madras High Court as reported in AIR 1951 Mad 855. The Court considered a case of lease of a building for residence of police officials and it was held that the State Government was not a tenant as the lease was entered into by the Superintendent to Police who was not an officer empowered to execute a contract on behalf of the Governor. Reliance was also placed on a third case, as reported in 1989 ALJ 397. A building was let out to the Government and the Government was discharging its duties and obligations as tenant and paying rent, it was held that the Government was estopped from raising a plea at the stage of revision that the tenancy was not created by executing an agreement as per provisions of Article 299. The learned counsel while relying on this case-law submitted that this law of estoppel would be applicable in the present case for the plaintiff who was aware of the occupation of the inner portion of the premises by the defendant and who had realised rent from 1972 to 1986 without any protest. Learned counsel for the respondent placed reliance on a decision of the Supreme Court in the case of Mulam Chand, as reported in 1968 ALJ 745. It was held herein that the provisions of Article 299 (1) of the Constitution of India are mandatory in nature and the contravention of this nullifies the contract and makes it void. In the case before the Supreme Court it was a contract in favour of the appel lant to remove forest produce like lac, tendu leaves etc. It was held herein, that there was no question of estoppel or ratification in cases of contravention of Article 299 as this provision was enacted not for the sake of mere form but for safeguarding the Government against unauthorised contracts. Under Article 299, all contracts made in the exercise of executive power of the Union or of a State shall be expressed to be made by the President or by the Governor, as the case may be, and are to be executed on behalf of the President or the Governor by such person in such manner as the President or the Governor may direct or authorise. Reliance was further placed on a decision of the Allahabad High Court, as reported in AIR 1982 All 260. Here was a case of delivery of possession of a house by a lease executed in favour of the govern ment. The lease was for five years but the lease-deed was not registered. The Court found that a lessor and lessee relationship did not come into existence as the lease-deed was not registered and the possession of the Government was that of a licensee and the Government was liable to restore possession to the owner. In the plaint itself the plaintiff had alleged in that case that there was no valid lease between the Government and the plaintiff and the possession of the Government was mere permissive and a question arose whether the defendant was a tenant in the suit property. The Court held that the defendant was a licencee and was liable for eviction.;