Wanchoo, C. J. - (1.) THIS is a reference by the Sessions Judge of Bikaner in connection with certain orders passed by the Tehsildar-Magistrate of Bikaner under Bikaner Notification No. 19 of 17th March, 1947. THIS Notification gave power to Magistrates of the First and Second Class to order vacation of houses under certain conditions.
(2.) A preliminary objection has been taken on behalf of the opposite party that in view of the coming into force of the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950) , the present revision does not lie to this Court. So far as this preliminary objection is concerned, it is sufficient to say that a Division Bench of this Court decided on 12th of April, 1950, in criminal revision No. 57 of 1949 (Manak Chand V. Bansidhar) that orders passed by Magistrates under Notification No. 19 of the 17th March, 1947, were in their capacity as courts, and were, therefore, revisable by the Sessions Judge and this Court. At one stage, I had a doubt whether Magistrates, who passed orders under that Notification, could be deemed to be courts or could only be persona designate. But on reading the Notification I find that the words ' Court of a Magistrate ' appear in rule 4, and thereafter the word 'court' is repeated more than once in subsequent rules of the Notification. It seems, therefore, that the intention was to confer these powers on courts of Magistrates, and perhaps this was done in order that there might be revisionary powers in the Sessions Court and the High Court, as the Notification itself provided no powers of revision or appeal against such orders of Magistrates. It is hardly likely that the former Bikaner Government intended to give absolute powers to Magistrates in the matter of eviction, and that may explain why the word 'court' was used in many of the rules, and, therefore, I am of opinion that the order passed by the Magistrate under that Notification must be held to be an order by the Court of a Magistrate of the Second Class. In that view of the matter, it is immaterial what provisions have been made under the Rajasthan Premises (Control of Rent and Eviction) Act (No. XVII of 1950), for once it is established that the original order was passed by the Court of a Magistrate of the Second Class, revision would lie to the Sessions Judge under Sec. 435 of the Code of Criminal Procedure, and thereafter to this Court. I therefore, over-rule the preliminary objection. I now come to the facts of the case. The landlord Vaziruddin applied to the Magistrate for eviction of his tenant Himmat Singh on two grounds, namely, that there was lack of accommodation in his house consequent on the marriage of his son, and that there was bad blood between his son, who had been married, and his second wife, who was the step-mother of his son. Consequently, he wanted to put his son in his other house, which had been let to Himmat Singh. The Tehsildar-Magistrate inquired into the matter, and came to the conclusion on the evidence that was produced before him that there was lack of accommodation in the house of Vaziruddin, and that there was bad blood between his son and his second wife, and that therefore, it was necessary that the son should live separately in his other house. This order was taken in revision to the learned Sessions Judge, who has made this reference. I must say that the order of the Tehsildar is better reasoned and more intelligible than the order of the learned Sessions Judge. There were only two points which the learned Judge had to consider, namely, (1) whether there was lack of accommodation or not, and (2) whether Vaziruddin genuinely needed the other house because of the bad blood between his son Chhotu and his second wife. So far as the question of lack of accommodation is concerned, the learned Judge's order does not show that he appreciated the point at all. The order of the Tehsildar-Magistrate shows that he had himself gone to the spot, and made an inspection of the house, and found that there was lack of accommodation. Learned counsel for the applicant, however, urges that the evidence shows that Vaziruddin's son had been married before this house was let out to Himmat Singh, and that there had been no further addition in the family. It is, therefore, contended, that if Vaziruddin and his son and other members of the family could live together for so many years without feeling that there was lack of accommodation, there was no reason why they should suddenly start feeling in 1950 that there was not enough space for all of them to live. So far as that argument is concerned, it may be pointed out that so long as there were good relations between Chhotu, the son, and his step-mother, the family could have continued to live even though the space was not enough; but when the relations between Chhotu and his step-mother became strained, it is obvious that what was sufficient for a family consisting of loving members would be entirely insufficient for a family in which one set of members always quarrelled with the other set. The whole thing, therefore, depends upon whether there was bad blood between Chhotu and his step-mother. On this point, there was evidence of Vaziruddin, his father-in-law Shamshuddin, his relation Mohmmad Baksh, and a neighbour Kamruddin. There could be no evidence of a negative character in this connection on behalf of the applicant, and he did not try to produce it. The matter has, therefore, to be judged on the evidence of these four witnesses. The learned Sessions Judge has not accepted the evidence of these witnesses on the ground that there is no independent evidence to prove that there is any friction between Chhotu and his step-mother. This can hardly be a reason for rejecting the testimony of these witnesses in revision, for after all evidence of this kind could only be had from relations and next door neighbours. Learned counsel for the applicant, however, urges that neither Chhotu nor his step-mother has been produced. It would, perhaps,have been better if Chhotu and his step-mother had been produced; but it does not necessarily follow from the fact that these two have not been produced that the four witnesses who have been produced, including the father of Chhotu, should be disbelieved. It seems that to begin with, the family was living in concord, and that is why the house was let to Himmat Singh. Later it appears that some bad feeling developed between Chhotu and his step-mother, and that is what forced Vaziruddin to make this application. On the whole, I think that the Tehsildar-Magistrate was right in his conclusion, and there is no necessity for interference in revision. The reference is hereby rejected. . ;