- (1.) S. U. Khan, J. At the time of hearing no one appeared on behalf of respondents hence, only the arguments of learned Counsel for the appellants were heard.
(2.) THIS is a Second Appeal under Section 100 C. P. C. In the memo of appeal substantial questions of law were not stated as required by Section 100, C. P. C. Appeal was admitted on 24-9-1980 by the following order : "admit. Issue notice on substantial questions of law as stated in ground Nos. 1 and 2. " Ground Nos. 1 and 2 are quoted below : (1) Because the Courts below have not recorded a finding as to when the contract of tenancy had taken place in between the appellant and respondent No. 1, it acted illegally restraining the appellant from executing the decree for possession which he obtained in Suit No. 125 of 1971. (2) Because there being no allotment order in favour of respondent No. 1 and as such his occupation is unauthorised under Section 13 of U. P. Act No. 13 of 1972 and is liable for ejectmnet and the contrary view of the Courts below is patently erroneous in law. Thereafter, on separate sheet of paper learned Counsel for the appellant stated the following four substantial questions of law : Substantial Question of Law (1) Whether the lower appellate Court was justified in decreeing the suit by shifting the onus on the appellant in place of Jungeet Singh respondent on whom the onus was to prove his case? (2) Whether the lower appellate Court could have decreed the suit irrespective of fact brought on record that the proceedings for eviction and possession of the shop under Order XXI, Rule 97 was pending and the suit was barred by Section 47 of C. P. C. ? (3) Whether the suit of permanent injunction was maintainable on the basis of illegal possession specially in absence of any allotment order from the District Magistrate under U. P (Temporary) Control of Rent and Eviction Act, 1947 then in force or Section 16 of the Act No. 13 of 1972? (4) Whether the suit could have been decreed on the basis of unauthorised occupation in shop on the alleged contract, not enforceable, being void under Section 23 of the Contract Act? The facts of the case are that original defendant appellant Raghunath Prasad filed suit for eviction against original respondent No. 2 Sri Deen Dayal Parmar since deceased and survived by legal representatives being Suit No. 125 of 1971. The suit was decreed on the basis of compromise on 25-8- 1971. Thereafter, plaintiff of the said suit, i. e. , appellant filed execution application also impleading therein Sri Jangjeet Singh respondent No. 1 in this appeal.
(3.) THEREAFTER, Jangjeet Singh filed O. S No. 319 of 1971 against owner landlord Raghunath Prasad and Deen Dayal Parmar giving rise to the instant second appeal. In the plaint of the suit giving rise to the instant second appeal it was stated that initially Deen Dayal was the tenant of the shop in dispute who vacated the same and thereafter Raghunath Prasad gave possession of the shop in dispute to Jangjeet Singh as tenant however, Raghunath Prasad owner landlord told him (Jangjeet Singh) that under law it was necessary to get the shop allotted in favour of Jangjeet Singh which could be quite troublesome hence, rent receipts were continued to be issued in the name of Deen Dayal. It was further stated that Jangjeet agreed to that arrangement willingly and thereafter Jangjeet continued to pay the rent to the owner landlord, however, he came to know that Raghunath Prasad had colluded with Deen Dayal and filed Suit No. 125 of 1971 against Deen Dayal and got the same decreed through compromise on 25-8- 1971. The main grievance of the plaintiff Jangjeet Singh was that he could not be evicted in execution of the decree passed in Suit No. 125 of 1971. The actual relief claimed in the suit was for a decree of permanent prohibitory injunction restraining Raghunath Prasad from forcibly evicting the plaintiff Jangjeet. The trial Court/iiird Additional Munsif, Mathura held that the relationship of tenant and landlord in between plaintiff Jangjeet and defendant Raghunath Prasad was not proved. The trial Court specifically held that the rent receipts which were filed were for the period from 1962 to 1965 and after 1965 no receipt had been filed. In the receipts, it was shown that Deen Dayal was the tenant and the rent was paid through Jangjeet Singh. The suit was ultimately dismissed on 10-3-1977. Against the said judgment and decree plaintiff Jangjeet Singh filed Civil Appeal No. 65 of 1977. Civil Judge, Mathura through judgment and decree dated 25-4-1980, allowed the appeal, set-aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff appellant for permanent injunction restraining the defendant respondent from forcibly ejecting the plaintiff appellant from shop No. 1/290 otherwise than in due course of law. The said judgment of the appellate Court has been challenged through this second appeal.;