JUDGMENT D.K. Seth, J.
1. The petitioner as plaintiff instituted Original Suit No. 1351 of 1997 in the Court of Learned Civil Judge, Junior Division, Kanpur Nagar, against the opposite party-defendant for injunction restraining the defendant from evicting the plaintiff except through due process of law. An application for injunction was moved in connection with the said suit. Ad-interim order was issued on 5th August, 1997, Subsequently, the application for temporary injunction was dismissed by an order dated 1st May, 1999 passed by the learned civil Judge, Civil Misc. Appeal No, 146 of 1999 was preferred by the plaintiff-petitioner. By an order dated 18th August, 1999 passed by the Additional District Judge, Vth Court. Kanpur Nagar, the appeal was dismissed. These two orders dated 1st May, 1999 and 18th August. 1999 has since been challenged in this petition under Article 226 of the Constitution of India.
2. An application has since been filed by the petitioner seeking to convert the petition into one under Article 227 of the Constitution of India. The said application is allowed and leave is granted to convert the application into one under Article 227 of the Constitution of India.
3. Mr. M. D, Singh, learned counsel for the petitioner contends that the petitioner became tenant in respect of the said suit property by virtue of an oral agreement between the plaintiff and the defendant entered into on 20th May. 1997 at a rent of Rs. 350 payable per month.
The plaintiff had advanced the rent for the period 20th May. 1997 till 19th June, 1997 but no receipt was issued. At the time of payment of the rent for the next month, the plaintiff insisted on issuing of receipt for the rent advanced but the defendant refused. The petitioner, thereafter, sent the rent through money order which having been refused, the rent is being deposited under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. 1972. On the allegation that the plaintiff fears that the defendant could evict him forcibly, the suit was filed seeking injunction restraining defendant from evicting the plaintiff forcibly. According to Mr. Singh, even if the plaintiff is held to be trespasser but still then he cannot be dispossessed even by the owner of the property except by recourse of law. He relied on paragraph 8 of the decision in the case of Krishna Ram Mahale v.. Mrs. Shobha Venkat Rao, AIR- 1989 SC 2097. Therefore, the order passed by both the Courts below, refusing to grant injunction, on the finding that the plaintiff was unable to establish his case of tenancy, cannot be sustained.
4. Mr. Ramendra Asthana, learned counsel for the opposite party on the other hand contends that since the plaintiff has not been able to establish his tenancy right and he having been found to be a trespasser by both the Courts below, the said finding cannot be interfered with by this Court sitting in revision. In case the said finding remains in that event, the plaintiff as trespasser cannot maintain any injunction against the true owner. The defendant-opposite party had initiated a proceeding under Section 16 of the 1972 Act for releasing of the properly in his favour. The said proceeding cannot be estopped. According to him, unless the plaintiff is able to make out a prima facie case, he is not supposed to obtain an interim order of Injunction against the landlord. Then again the plaintiff had not claimed himself to be a trespasser but had claimed to be a tenant. Unless he establish that he is a tenant, he cannot seek Injunction on the basis of such plaint when the Courts had found him to be a trespasser. He had relied on several decisions which he had cited at the Bar. Therefore, according to him. the order passed by both the Courts below are justified and cannot be interfered with.
5. I have heard both the counsel at length.
6. In the order dated 1st May. 1999, the learned trial court had found that the plaintiff has not been able to establish his right either as a tenant or as a licensee. The trial court had disbelieved the plaintiff's case of tenancy. He had also found that the alleged possession of the plaintiff was illegal since he has not been able to show any order of allotment by the competent authority under Act 13 of 1972. Therefore, the plaintiff having failed to make out a prima facie case of tenancy, he could not enforce his right on the basis of illegal possession through an injunction against the rightful owner. On this ground, he had dismissed the application for injunction and vacated the Interim order.
7. The learned lower appellate court had affirmed the said order and had come to the same finding as has been arrived at by the learned trial court. It records an observation that the plaintiff has not been able to show that he is a tenant by production of any document or by any rent receipt. The deposit of rent under Act 13 of 1972 would not be a proof to establish the tenancy, without any proof to the extent that there was an agreement between the parties or that there was a rent receipt granted to him or that it was allotted to him by the competent authority. On the other hand from the records, it appears that the erstwhile tenant Mithilesh Rai had handed over the possession of the property to the defendant and that the said Mithilesh Rai was a tenant in respect of the suit property at a rent of Rs. 900 per month. Thus. In the absence of any prima facie case in favour of the plaintiff, the injunction was refused and the appeal was dismissed.
8. Thus, it appears that the findings are concurrent finding of fact with which this Court is very slow to interfere unless there is any perversity. Despite vehement argument by Mr. M. D. Singh and reference to various documents on record, it does not seem that any perversity is in-existence in any of the two orders. After having gone through the material on record and the impugned order, I have not been able to find out any perversity, in as much as the proposition, that a properly fetching Rs. 900 per month would be let out by the landlord, by private negotiation, for Rs. 350 per month, seems something very difficult to swallow. As such. I am not inclined to interfere with the finding of facts arrived at by both the Courts below.
9. Now on the admitted position as arises out of the concurrent finding of fact, it is apparent that the plaintiff has failed to establish that he is a tenant or licensee. On the other hand, the defence version that the plaintiff is trespasser appears to be prima facie correct. Now it is to be seen whether in such circumstances, the plaintiff could maintain an injunction against the landlord who is admittedly the rightful owner.
10. Mr. M.D. Singh contends that even if a property in the hands of a tenant is released by the tenant, the landlord cannot occupy the same except an order passed by the Competent Authority in terms of Section 16 of the 1972 Act. Section 13 restricts occupation of a building without allotment or release and Section 15 makes it obligatory on the part of the landlord to notify the vacancy of the premises to the District Magistrate. Thus, even if the defendant is the landlord of the property, still then he has no right to occupy the same and as such, the defendant-landlord could not evict the plaintiff even though he had occupied the same without any allotment in violation of Section 13 of the 1972 Act. Therefore, the plaintiff could not be evicted forcibly even if the plaintiff is unable to establish his tenancy right and as such the injunction is maintainable against the landlord in view of the ratio decided in paragraph 8 of the decision in the case of Krishna Ram Mahale (supra).
11. There is no doubt that a person having no right to remain on the property, cannot be dispossessed by the owner of the property except the recourse to law. It is one thing to say a person cannot be dispossessed even if he has no right to remain on the property except through recourse to law. It is another thing to say that a trespasser can maintain an Injunction against the rightful owner. Even if a person can claim that he cannot be evicted except through law. But still then he cannot maintain an injunction as a trespasser against the rightful owner.
12. Section 13 of the 1972 Act restricts occupation of a building without allotment or release. Thus, as soon the erstwhile tenant vacated, the landlord may not occupy the building absolutely without any order of release. But that does not mean that he could be dispossessed by a stranger and on that strength a stranger would enter into possession in the vacuum. The occupation of the landlord until an order of release is issued by the competent authority under Section 16. Is subject to the order that might be passed under Section 16 either releasing the property in favour of the landlord or by allotting the property in favour of a tenant. If it is released in favour of the landlord, then the occupation of the landlord would become absolute. On the other hand, if it is allotted to a tenant then the landlord is bound to allow the tenant to occupy the same and the occupation of the building by the landlord would cease and be deemed to be that of an unauthorised occupant in view of Section 13 of the 1972 Act. Section 15 makes it obligatory on the landlord to intimate the vacancy to the District Magistrate. But non-notification of such vacancy to the District Magistrate does not entitle any stranger to occupy the building and maintain his possession as rightful possession. The entry of the plaintiff in the premises is also equally unauthorised under Section 13 without an order of allotment. In case, an order under Section 16 releasing the property in favour of the landlord is issued in that event, the plaintiffs unauthorised possession would become confirmed unauthorised possession for all purposes. Admittedly, the proceeding under Section 16 is pending. Though it is contended by Mr. Asthana that the said proceeding has since been allowed in favour of the defendant but -
there is nothing on record. Then again. Mr. Singh had fairly submitted that he has no information about the same. But then it is neither here nor there. Whether any order under Section 16 has been passed or not is immaterial for the purpose of question involved in the present case.
The question is to be decided on the basis as it stood on the date when the suit was instituted and the application for injunction was filed.
Thus even on the proposition of law as discussed above, the plaintiffs possession or occupation in the absence of any proof of tenancy or licensee is that of an unauthorised occupant.
13. It is a settled principle of law as has been held by the various High Courts and the Apex Court that a trespasser can maintain his possession against the whole world except the original owner. In the case of Prataprai N. Kothari v. John Braganza. (1994) 4 SCC 403 cited by Mr. Asthana, the Apex Court had held that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. In the present case the plaintiff claims to have come to occupy the property on 20th May, 1997 whereas the suit was filed in August, 1997 in which injunction was granted on 5th August, 1997. Thus, even on the allegation made in the plaint, the possession was that of two and half months which cannot be said to be a long continuous possession. In the decision in the case of Tamil Nadu Housing Board v. A. Viswam. (1996) 8 SCC 259, the Apex Court had held that injunction cannot be Issued against the true owner namely, the Housing Board in whom the land ultimately stood vested and then stood tansferred to the Municipal Corporation. A trespasser cannot claim injunction against the owner nor the Court can issue the same. In the case of Premji Ratansey Shah and others v. Union of India and others, (1994) 5 SCC 547, the Apex Court had held that even assuming that they had become in possession their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner.
14. In the present case admittedly, the defendant is the owner of the property being the landlord thereof. Therefore, he is the rightful owner and entitled to an order of release under Section 16 of the 1972 Act. On facts, it has been held that the plaintiff was unable to establish his right as a tenant or a licensee and as such he is a trespasser or in other words he is an unauthorised occupant within the meaning of Section 13 of the 1972 Act and as such neither he can ask for injunction against the landlord nor the Court can grant such injunction in favour of the plaintiff against the landlord. This position cannot be changed even by reason of Section 13 of the 1972 Act or by reason of Section 15 thereof. In as much as when the landlord was precluded from occupying the building without a release order under Section 16. It is not expected that he will throw away the property or part with possession of the property to a stranger, until a release order is issued or that somebody else will force Into possession frustrating his attempt to obtain an order of release. If the unauthorised occupation of the plaintiff and that of the defendant are weighed together, even as submitted by Mr. Singh that the possession of the plaintiff is a better possession, it appears that the landlord had every right to hold the property and resist his occupation against everyone until either an order of release or an order of allotment is issued under Section 16. He could not maintain his possession against a person whom-the property is allotted by the competent authority under 1972 Act. Thus, his unauthorised occupation in terms of Section 13 would be in a better position than that of a trespasser who had forced into occupation without an order of allotment. The plaintiff could not have entered into possession during the void, until and unless he obtains an order of allotment in his favour from the competent authority. Therefore. his unauthorised occupation cannot be said to be a better possession or title. Then this question of better title or possession is relevant. when both are trespassers. The landlord can never be called a trespasser in respect of his own property. His occupation after the property is handed over by the erstwhile tenant is deemed to be unauthorised simply by fiction of law. Such unauthorised occupation is not a natural unauthorised occupation. It is only by fiction awaiting release or allotment, it is held to be unauthorised. But then an owner can never be said to be a trespasser in respect of his own property. The unauthorised occupation was for a limited purpose within the scope and ambit of the 1972 Act which does not permit a stranger to occupy the premises without an order of allotment and as such the question of better title does not emerge. Though by fiction, the occupation of the landlord may be an unauthorised occupation by reason of Section 13 but in effect and for all purposes, it is not an unauthorised occupation in a proceeding other than those under 1972 Act and that too for limited purpose, having relation to Section 16 of the 1972 Act. Such occupation would be unauthorised only against a person to whom the property is allotted under Section 16. The same cannot have any different meaning. The occupation of the landlord cannot be unauthorised even under 1972 Act against a stranger. The expression unauthorised occupant used in Section 13 has to be interpreted in the context of the Act for the purpose and object of the scheme of the Act it self and not beyond. Therefore, the occupation of the landlord cannot be said to be an unauthorised occupation in a proceeding other than a proceeding under 1972 Act between the landlord and tenant, a person to whom the property is allotted. Therefore, in civil court, the occupation of the landlord, without an order of release, against a person to whom the property has not been allotted, is not an unauthorised occupation and as such the landlord remains the owner and can resist injunction by a trespasser. Thus, the ratio laid down in the case of Krishna Ram Mahale (supra), cannot be attracted in the facts and circumstances of the case.
15. If such an interpretation as contended by Mr. M. D. Singh is accepted, then it would permit perpetuation of illegality and illegal occupation. It will bring complete disorder and disharmony not only in the society but it would also tempt and allure a designing tenant to let some one into possession while leaving or giving up the tenancy, frustrating the exercise of the power under Section 16 of the Act. It would put a stamp of legality on the occupation of a stranger, otherwise unauthorised under Section 13 of the 1972 Act. It Will run counter to and frustrate the purpose and object of the 1972 Act and make the same wholly unworkable. By reason of the scheme of the 1972 Act particularly. Sections 13, 15 and 16 of the said Act, during the period of void, i.e., between vacation by erstwhile tenant and release or allotment under Section 16, the authority under the 1972 Act. by fiction of law. Is the custodia leg's. Thus, a stranger cannot maintain his possession in respect of a property in custodia legis. pending adjudication under Section 16 of the 1972 Act.
16. On the other hand, the ratio decided in Tamil Nadu Housing Board (supra), and Premj Ratansey Shah (supra), apply in the present case in full force in the facts and circumstances of the case. Therefore the plaintiff cannot maintain injunction against the defendant. Thus both the courts below have arrived at a correct conclusion and I do not find any infirmity in the said order.
17. Mr. Asthana had relied on the decision in the case of Jagdish Prasad and others v. Maharaj Kashi Raj Dharam Karya Nidhi, Varanasi, 1999 (1) ARC 198. where the learned single Judge of this Court had held that an injunction passed by the civil court does not prohibit the Rent Control and Eviction Officer to proceed in accordance with law in exercise of the power under Section 16 of the Act Reliance on this decision is not relevant for our present purpose. In as much as no injunction has been sought for against the defendant from proceeding with the proceeding under Section 16 of the 1972 Act.
18. For all these reasons. I am not inclined to interfere with the orders impugned. Thus, the writ petition under Article 227 of the Constitution of India fails and is, accordingly, dismissed.
19. However, there will be no order as to costs.