CHAUHAN, J. - (1.) THE instant writ petition has been filed challenging the impugned judgment and order dated 30. 11. 93 passed by the learned District Judge/appellate Authority under the Rajasthan Premises (Eviction of Unauthorised Occupants) Act, 1964 (hereinafter referred as "the Act"), by which it has set-aside the order dated 9. 9. 1983 passed by the Estate Officer against the respondents in Case No. 138/1981.
(2.) THE facts and circumstances giving rise to this case are that respondent No. 1 Jamsher Ali was given shops Nos. 39,40 and 41, and Maliyas Nos. 62 and 63, total five units, on a monthly rent of Rs. 53/- by the State Devasthan Department Vide rent note dated 1. 6. 1968 (Annexure 5 ). THE said rent note provided for a clause putting embargo no sub-letting the said premises or any part thereof by the said lessee and in violation of the said term, respondent No. 1 inducted respondents No. 2 and 3 in a part of the said premise; and in violation of the terms of the rent note, the respondent No. 1 had,also, made material alterations in the rented premises. THE petitioner served a notice dated 3. 7. 80 (Annexure 11) determining the te- nancy in favour of the respondent No. 1 for violating the terms and conditions of the rent note and the said notice provided that the tenancy would come to an end on 31. 7. 80 in the afternoon. Respondent No. 1 did not vacate the premises after the said date, i. e. , 31. 7. 80, hence respondent No. 4, the Estate Officer, served notices on respondents No. 1 to 3 under Section 4 (1) of the Act, which were served upon them on 10. 2. 81. However, they did not enter appearance nor file any reply. THE Estate Officer passed the order passed the order dated 17. 8. 83 for proceeding ex-parte against respondents No. 1 to 3 and subsequently passed the order dated 9. 9. 83 (Annexure 14) under Section 5 of the Act to evict the said premises. Being aggrieved and dissatisfied, respondents No. 1 to 3 filed an appeal under Section 9 of the Act before the learned District Judge, Jodhpur, which has been allowed by the impugned judgment and order dated 30. 11. 93 (Annexure 4) and the order of the Estate Officer dated 9. 9. 83 has been set-aside. Hence this petition. Heard Mr. Vineet Kothari, learned counsel for the petitioners and Mr. L. R. Mehta, learned counsel for respondents No. 1 to 3, and perused the record. Mr. Kothari, in his most usual vociferous style, revealed the chequerred history of the case and tried to impress upon the Court by pointing-out the irregularities committed at the appellate stage, particularly granting the stay of dispossession by the Appellate Court before restoring the appeal, which had been dismissed in default. However, as the interlocutory order has emerged in the final order, examining the circumstances of interregnum period, would not serve any fruitful purpose at this stage and I decline to deal with all those issues for the reason that even if there were some irregularities in passing the interim order at the appellate stage by the Appellate Authority, the contesting respondents cannot be held responsible for the same. Therefore, the case is being considered on merit. Mr. Kothari has submitted that as the respondent No. 1 has inducted respondents No. 2 and 3 in the suit premises without permission of the petitioner in violation of the terms and conditions of the rent note, and also made material alterations in the suit premises and the tenancy came to an end on 31. 7. 80 by the notice of determining the tenancy, the respondents No. 1 to 3 fall in the category of the unauthorised occupants and the Appellate Authority has erred in setting-aside and reversing the well-reasoned order of the Estate Officer. On the other hand, Mr. Mehta, learned counsel for the respondents, has submitted that the tenancy between the petitioners and respondent No. 1 is undisputed as the respondent No. 1 had entered into the premises with the permission and in pursuance of the rent-note executed by the petitioners in his favour. However, the petitioners cannot raise the issue that induction of respondents No. 2 and 3 or material alterations in the suit premises, was in violation of the terms of the rent- note, for the reason that the said rent-note cannot be relied upon for want of registration, which is mandatorily required under the provisions of Section 107 of the Transfer of Property Act (hereinafter called "the T. P. Act" ). Moreover, the tenancy did not come to an end because the notice served by the petitioners on the respondent No. 1 was not in consonance with the provisions of Section 106 of the T. P. Act being not for clear thirty days. Hence, the question of application of the provisions of the Act does not arise for the reason that unless the tenancy is termi- nated in accordance with law, the respondent No. 1 cannot be held to be an unauthorised occupant. Moreover, the petitioners did not prove their case before the Estate Officer by adducing any evidence and proving the documents. The eviction order could not have been passed on mere allegations made by the petitioners for the reason that under Order 8 rule 5 of the Code of Civil Procedure, 1908, a Court may take the allegations mentioned in the plaint if not denied specifically or by necessary implication, to have been proved merely on allegations but the proviso to the said rule provides that the Court may, in its discretion, require any fact so admitted, to be proved otherwise that by such admission. Mr. Mehta has urged that in the instant case, as the Estate Officer has not passed the order on mere allegations and the application made by the petitioners and petitioners were directed to prove their case, the order is based on no evidence. The documents filed before the Estate Officer were not proved by any person, and even the rent-note and the notice determing the tenancy were not proved, no evidence was adduced proving the factum of sub-letting and material alteration in the suit premises. Thus, the order was liable to be reversed in appeal and no fault can be found with the impugned judgment and order passed by the Appellate Authority.
(3.) MR. Kothari has placed a very heavy reliance on a Division Bench judgment of this Court in Mansha Ram vs. Deputy Commissioner and others (1), wherein the Division Bench has held as under:- "it is contended that the tenancy of the petitioner has not been determined in accordance with the provisions of Section 106 of the T. P. Act. It is contended that sub-letting cannot be a ground for eviction in view of the provisions of Section 108 of the T. P. Act. Both the contentions are not available to the petitioner, in as much as the relationship between the parties is governed by the provisions of the Rajasthan Premises Act and not by the provisions of general law of the Transfer of Property Act. " On the strength of the aforesaid judgment, Mr. Kothari has submitted that as the provisions of Section 106 of the T. P. Act are not attracted, there was a case of valid determination of the tenancy and after the said determination, the respondents were undoubtedly unauthorised occupants and have rightly been evicted by the Estate Officer. On the other hand, Mr. Mehta has placed reliance upon the judgment of the Hon'ble Supreme Court in M/s. Jain Ink Manufacturing Company vs. L. I. C. of India and another (2), wherein the Apex Court was dealing with the provisions of Section 2 (g) (ii) which is verbative of Section 2 (e) of the Act and defines the "unauthorised occupant". The Apex Court observed as under:- "section 2 (g) (ii) is an inclusive definition and consists of two separate limbs: (i) where a person is in occupation in relation to any public premises without authority for such occupation of the tenancy: and (ii) even if the possession and occupation of the tenant continues after the lease is determined. " Mr. Mehta has submitted that in view of the judgment of the Hon'ble Supreme Court, the provisions of Section 106 of the T. P. Act are attracted and unless the lease is determined strictly in accordance with the provisions of Section 106 and 111 (h) of the T. P. Act, the provisions of the Act cannot be made applicable. Further, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of State of U. P. vs. Jahoor Ahmed and another (3); and of Allahabad High Court in Jagat Singh vs. Fourth Additional District Judge, Meerut (4), wherein same view has been taken. In S. R. B. Gayakwad vs. Union of India and others (5), the Division Bench of Bombay High Court considered the issue of applicability of the provisions of the T. P. Act in case of public premises and observed as under:- "the contract of lease, no doubt, gives rise to State as an interest of the lessee in the property, bare right to possession being only a part of such estate and interest. The determination of the lease, no doubt, puts an end to the contract and such interest and the estate. That must be necessary Consequence and effect of such notice under Section 106 read with Section 111 of the T. P. Act. " ;