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Allahbad High Court
SATISHCHANDRA,N.D.OJHA
Ganesh Prasad - Appellant
Versus
The State of U.P. - Respondent
Decided On : 03/29/1974
U.P. (TEMPORARY) CONTROL OF RENT AND EVICTION ACT, 1947 - SECTION 3 - DECREE FOR EJECTMENT - VALIDITY - ADMISSION OF GROUNDS FOR EVICTION IN COMPROMISE APPLICATION - EFFECT - JURISDICTION OF COURT TO PASS DECREE - SCOPE OF INQUIRY BY EXECUTING COURT - SECTION 145 OF THE CODE OF CRIMINAL PROCEDURE - REFERENCE TO CIVIL COURT - SCOPE OF INQUIRY BY CIVIL COURT - FORCIBLE AND WRONGFUL DISPOSSESSION - DETERMINATION.
Fact of the Case:
Ganesh Prasad purchased a house from Dharam Deo Agarwal on 29-12-1970. He obtained permission under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, to file a suit for ejectment against the tenant, Jagdish Saran Rastogi. The suit was filed on 6-5-1971, and a compromise decree for ejectment was passed on 12-5-1971. The decree was executed on 21-5-1971, and Ganesh Prasad obtained possession through the Court Amin on 24-5-1971. Thakur Prasad Badri Prasad Junior Girls High School, Moradabad, filed an objection under Order XXI, Rule 100 of the Code of Civil Procedure, claiming that it was in possession of the house in its own right and was forcibly and wrongfully dispossessed. The objection was allowed, and Ganesh Prasad filed a suit under Order XXI, Rule 103 of the Code of Civil Procedure. Simultaneously, the school filed an application under Section 145 of the Code of Criminal Procedure, alleging forcible and wrongful dispossession. The Magistrate referred the question of possession to the civil court under Section 146 of the Code of Criminal Procedure. The Munsif held that the decree for ejectment was void and that the school was forcibly and wrongfully dispossessed. The Additional City Magistrate ordered the house to be delivered to the school. Ganesh Prasad filed a revision petition, which was dismissed by the 1st Civil and Sessions Judge, Moradabad. Ganesh Prasad filed a writ petition in the High Court, which was dismissed on the ground that he had an alternative remedy by way of a suit for possession. Ganesh Prasad filed a special appeal in the High Court.
Finding of the Court:
The High Court held that the decree for ejectment was valid as the compromise application contained an implied admission by the tenant of the grounds for eviction stated in the plaint. The High Court also held that the Munsif erred in not recording a finding on the question of whether the school was in possession of the house on the relevant date of its own or as a licensee of the tenant. The High Court set aside the orders of the Munsif, Additional City Magistrate, and 1st Civil and Sessions Judge and directed the Munsif to record a fresh finding on the reference in accordance with the observations made by the High Court.
Issues: 1. Whether the decree for ejectment was valid? 2. Whether the school was forcibly and wrongfully dispossessed? 3. Whether the Munsif erred in not recording a finding on the question of whether the school was in possession of the house on the relevant date of its own or as a licensee of the tenant?
Ratio Decidendi: 1. A decree for ejectment passed on the basis of a compromise is valid if the compromise application contains an express or implied admission by the tenant of the grounds for eviction stated in the plaint. 2. The executing court cannot go behind the decree to determine its validity if the decree on its face discloses some material on the basis of which the Rent Court could be satisfied with regard to the existence of a statutory ground for eviction. 3. In proceedings under Section 145 of the Code of Criminal Procedure, the civil court is required to determine which of the parties was in possession of the property on the relevant date. The civil court must record a finding on the question of possession, whether the possession was on behalf of the tenant-in-chief or as a sub-tenant or licensee.
Final Decision: The High Court allowed the appeal, set aside the orders of the Munsif, Additional City Magistrate, and 1st Civil and Sessions Judge, and directed the Munsif to record a fresh finding on the reference in accordance with the observations made by the High Court.
OJHA, J. :- The dispute giving rise to this Special Appeal relates to a house. It belonged to one Dharam Deo Agarwal. It was let out to Jagdish Saran Rastogi, respondent No. 7. The appellant Ganesh Prasad purchased the house from Sri Dharam Deo Agarwal on 29-12-1970. Thereafter, he made an application under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, for permission to file a suit against respondent No. 7. The necessary permission was granted on 4-5-1971. It was to be operative after thirty days. The appellant, however, filed a suit for ejectment of respondent No. 7 on 6-5-1971. The parties entered into a compromise on 12-5-1971 and the same day and decree for ejectment was passed on its basis, The decree was put in execution on 21-5-1971 and the appellant obtained possession through the Court Amin on 24-5-1971. Thereafter, an objection was filed by Sri Badri Prasad Tandon, Manager, Thakur Prasad Badri Prasad Junior Girls High School, Moradabad, respondent No. 5, under Order XXI, Rule 100 of the Code of Civil Procedure on the allegation that the house was occupied by the school in its own right and since it was not a party to the decree in execution of which it was dispossessed, it was entitled to be restored to possession over the house. This objection was allowed. Consequently the appellant instituted a suit under Order XXI, Rule 103 of the Code of Civil Procedure which is said to be still pending. Simultaneously an application has also been made by Ashok Kumar Tandon, Manager of the School under Section 145 of the Code of Criminal Procedure, on the allegation that the school had been in possession on 24-5-1971 when it was forcibly and wrongfully dispossessed in execution of a decree against respondent No. 7 to which it was not a party. On being satisfied that a dispute concerning the house, likely to cause breach of the peace, existed, the Magistrate concerned passed a preliminary order on 28-5-1971 and subsequently made a reference under Section 146 of the Code of Criminal Procedure to the civil court of competent jurisdiction to decide the question as to which of the parties was in possession over the house on the relevant date. The reference came up before the Munsif, Moradabad. Before the Munsif the case set up on behalf of the appellant was that the school was only a licensee of Jagdish Saran Rastogi, respondent No. 7, and was, therefore, rightly ejected in execution of the decree for ejectment against the said respondent. On this allegation it was pleaded on behalf of the appellant that the school had not been forcibly and wrongfully dispossessed. Apart from the plea that it had been forcibly and wrongfully dispossessed, it was also pleaded on behalf of the school that the decree in execution of which it was dispossessed was void inasmuch as the house in dispute was covered by the provisions of U.P. (Temporary) Control of Rent and Eviction Act, 1947, and on the date of the decree none of the grounds contemplated by Section 3 of the said Act on the basis of which the suit for ejectment against the tenant could be decreed existed. It was urged that since the permission granted under Section 3 was to be operative after 30 days of 4-5-1971 the date on which the order granting the permission was passed, the decree as passed on 12-5-1971 was illegal. This plea found favour with the Munsif and on the finding that the entire proceedings culminating in the compromise decree of 12-5-1971 were null and void, he held that the school was dispossessed forcibly and wrongfully within two months prior to the date of the preliminary order. The Munsif recorded the aforesaid finding by his order dated 1-10-1971. On receipt of the finding the Additional City Magistrate passed an order on 7-10-1971, to the effect that the house in dispute may be delivered to the school through Badri Prasad, Manager. The appellant filed a revision against the order of the Additional City Magistrate which was dismissed b
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