- (1.) D. C. Srivastava, J. This is defendant's second Appeal. The brief facts are that the plaintiff Mahmood Hasan was in occupation of shop No. 21, Jhanda Market, Dehradoon. The landlord of this shop is Darbar Gururam Rai Sahab, Dehradun. It was let out to the plaintiff-respondent in the year 1934 on monthly rent of Rs. 14. 62. In the year 1964 the plaintiff-respondent took another shop on lease and started tailoring business therein. On account of his of ill health the plaintiff-respondent on 15-8-84 decided to run a bangle business in the disputed shop and one Ratan Lal was made partner of this business. In April 1969 the appellant was employed as servant by Ratan Lal. Ratan Lal always represented that Mahmood Hasan was servant of the firm. In the year 1973 the partnership between Ratan Lal and the respondent came to an end. It was alleged that Ratan Lal in collusion-with the defendant-appellant got the disputed shop allotted in the name of the appellant. This allotment was cancelled in the year 1978. The appellant was considered to be trespasser. A suit for his eviction was filed as trespasser.
(2.) THE suit was contested by the appellant on numerous grounds. He admitted that Darbar Guru Ram Rai Saheb is the owner of the shop. It was pleaded that in the year 1964 the plaintiff had vacated the shop and since then the defendant-appellant was in possession. He denied other allegations made in the plaint. At one stage he pleaded that he become owner by virtue of adverse possession. It was also denied that he was servant of the firm Ratan Lal and Nathu Ram. At another place he pleaded that he was tenant in his own right and that the shop was allotted in his name. A revision was preferred against the allotment order in the nature of regularization under Section 14 of the U. P. Act No. 13 of 1972 which was allowed and the matter has been remanded. Since the proceedings before Rent Control and Eviction Officer are pending, it was pleaded that the suit is not maintainable. In this second appeal the following substantial question of law was framed by this Court: "whether on facts of the case and in the face of the fact that an order dated 17-1-87 declaring the vacancy is in existence in the case between the parties whether both the courts below were right in decreeing a suit of the plaintiff-respondent'?" Under this question three points have to be answered. The first is what is the date of declaration of vacancy. The second is whether the declaration of vacancy still exists and the last is whether the decree of the two courts below can be maintained. 4 On the first point there seems to be some confusion while framing substan tial question of law. The date of declaration of vacancy was written as 17-1-1987 whereas admittedly, vacancy was not declared on this date, but on 24-10-1973. The first point is, thus, answered by observing that the Rent Control and Eviction Officer notified the vacancy of the disputed shop on 24-10-1973. 5. The second point for consideration is whether the order declaring vacancy on 24-10-1973 still subsists. Much has been argued on this point by the learned counsel for the appellant that, since order declaring vacancy has not been set aside by the revisional court nor by this court in the writ petition, hence it has become final and so long as the order declaring the vacancy is not set aside and since it has become final the decree for possession passed by the two courts below is illegal and the suit should have been dismissed. 6. The above contention cannot be accepted. Annexure-1 of the stay vacation application is the order of the revisional court dated 24-11-1978. This order quoted below leaves little scope for contention that the order declaring vacancy has become final. In the operative portion of the order the revisional court made the following observation: "the order under revision is set aside. The case is sent back to the court below with the direction that it shall dispose of the objection filed by Nathu Ram against the vacancy which objections were filed on 31- 10-1973. After disposal of those objections if it is found that there is vacancy of the suit shop then the allotment application made in respect of the suit shop shall be considered. " It is, thus, manifest that the revisional court directed that the objection of Nathu Ram against vacancy shall be considered and if it is found that there is vacan cy then only pending allotment application shall be considered. At another place at page-7 of Annexure-1 the revisional court observed that - "i am of the opinion that the order under revision cannot be sustained and the same has to be sent back to the court below for a finding if actually there exists any vacancy in respect of the shop or not. " It is, thus clear from the above two observations of the revisional court that the question of vacancy was not finally decided, rather it was remanded to the Rent Control and Eviction Officer for reconsideration. 7. Annexure-2 is the copy of the order of this court in Writ Petition No. 1260 of 1980 filed by Mahmood Hasan against Nathu Ram. Under this judgment this court did not observe that the declaration of vacancy became final. On other hand the writ petition was dismissed being pre-mature inasmuch as the aggrieved party has remedy by wav of revision if and when final order of allotment or release is passed. 8. It is, thus clear that at no stage of litigation between the parties declaration of vacancy of the disputed shop has become final. If this is so, then the order under appeal cannot be disturbed. 9. It he third point for consideration is whether the order of the lower appellate court can be sustained or not. The learned counsel for the appellant contended that since there is declaration of vacancy of the shop in dispute and the matter is pending before the Rent Control Authorities, the Civil Court has no jurisdiction to grant relief. This contention is also without force. The plaint allegation do not show that the plaintiff- respondent ever alleged that the defendant-appellant was the tenant or sub-tenant in the disputed shop. Subsequently, he entered into a partner-ship agree ment with Ratan Lal. Ratan Lal secretly permitted the defendant-appellant to occupy the shop and was propogating and informing the plaintiff-respondent that he defendant appellant was kept as a servant, Since the health of the plaintiff- respon dent was well and he was running his tailoring shop in another shop, he could not know the real position. It was alleged that ultimately in collusion with the defendant-appellant Ratan Lal got the shop allotted. The allotment order was cancelled and the matter was remanded for fresh consideration of vacancy and then fresh con sideration of allotment applications was to be made in accordance with law. In this way the case of the plaintiff-respondent was that the defendant-appellant was illegal occupier and a trespasser in disputed shop. Even a tenant can file a suit for eviction or dispossession of a trespasser from his tenanted accommodation. Such civil suit is definitely covered under Section 9 of the Code of Civil Procedure and is not barred by any provision of the U. P. Act No. 13 of 1972. The situation would have been different if the plaintiff would have alleged that Ratan Lal had illegally sublet the accommodation to the defendant-appellant, Since possession was sought from trespasser alleging that he was illegal occupier, the suit was maintainable in civil court. The two courts after examining the contradictory stand of the defendant ap pellant correctly recorded a finding that the status of the defendant-appellant was that of a trespasser. The defendant-appellant was not sure of his status. Sometimes he alleged that he was owner of the disputed shop but this claim could not be substantiated by any evidence what to say of reliable evidence. He admitted that Darbar Guru Ram Rai Saheb is the owner of the disputed property. His next stand was that by virtue of adverse possession he became owner but this plea of adverse possession was wholly unfounded and self-contradictory because he himself alleged payment of rent to Darbar Guru Ram Rai Saheb against receipt. A tenant cannot claim adverse possession against his landlord. The claim is unfounded because in gredients of adverse possession have neither been alleged in the written statement nor proved by any evidence. He cannot be permitted to take the plea of adverse possession against the tenant-in-chief namely, the plaintiff- respondent. A licensee or a servant can hardly claim adverse possession, against his master or the licensor. The plea of adverse possession was rightly repelled by the two courts below. 10. The claim of the appellant that he is tenant in his own rights is also not established and it was righly repelled by the two courts below. Simply on the strength of an order of regularization-cum-allotment under Section 14 of u. R Act No. 13 of 1972 which has been set aside by the revisional court and which is non-existent, the appellant cannot claim that he is tenant in his own rights unless the rent control authorities again declare vacancy rather actual vacancy' as directed by the revisional court and pass fresh order of allotment or regularization of occupations in favour of the appellant, he cannot be said to be tenant in his own right. " No person from the side of the landlord has been examined to prove that the appellant is a tenant in his own right. 11. The plaintiff-respondent on the other hand successfully established from the evidence on record that initially the appellant was permitted to work in the shop as servant and subsequently, that permission was revoked. It was, thus, pure case of licence which was revoked. Licence can be revoked even orally and after revocation of licence the position of the occupier becomes unauthorised and he can be dispos sessed by due process of law namely, by filing a suit for his dispossession. If the plea of the appellant that he is owner or owner by adverse possession or tenant, was rejected or repelled by the two courts below, it cannot be said that the finding that the appellant was trespasser is vitiated by law. 12. I have already observed above, that declaration of vacancy has not become final, rather the revisional court has directed the Rent Control and Eviction Officer to decide afresh whether the shop is actually vacant and, thereafter, pass an order of allotment in accordance with law. As such there is no force in the contention that only rent control authorities under Section 16 of the Act, can restore possession after the allotment order has been cancelled. It is not a case of restoration of possession after cancellation of allotment order. In case, the allotment order is passed, in favour of the appellant after holding that there is actual vacancy of the disputed shop then the appellant can get possession in accordance with law but this is no ground for rejecting the claim of the plaintiff to recover possession from a trespasser. At present the position of the defendant - appellant is that of a trespasser. The two courts below, therefore, did not commit any illegality in decreeing the suit. 13. The appeal has, therefore, no merit and is bound to fail. 14. The appeal is dismissed with costs. Appeal dismissed. .;