# (2013) 1 ILRA 430

- **Citation:** (2013) 1 ILRA 430
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-03-20
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2013-1-ilra-430-42525
- **Pages:** 4

## Headnote

C.S.C., Sri Manish Tandon

(A) U.P. Urban Buildings(Regulation of
letting,
Rent
and
eviction)Act-1972Section 20 (2)(c): Eviction of ground of
material alteration-no specific finding
regarding
diminishing
value
due
to
alternation-in absence of pleading no
question of evidence.

(A) U.P. Urban buildings(Regulation of
letting, Rent and eviction)Act 1972Section 3(g); whether adopted sonwithin
definition
of
family-revisional
court wrongly treated adopted son as
strangers to family of land lord-on
pertext adoptive mother being alive not
produced as witness-held erroneous.

Held: Para-11

All
other
ingredients
necessary
for
making an adoption valid in accordance
with provisions of Hindu Adoption and
Maintenance
Act,
1956
have
been
proved. The Revisional Court did not find
any otherwise infirmity except the fact
that, according to him, in absence of
adoptive mother, who was alive but not
produced as witness, the valid adoption
whether valid, would remain unproved.
This approach of Revisional Court, as
already discussed, I am not inclined to
approve. The judgment of Revisional
Court thus is unsustainable and deserve
to fall.

Case Law discussed:
Criminal Appeal U/S 374 Cr.P.C. no. 358 OF
1982; AIR 1996 SC 591

## Text

430 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
erstwhile
Tilakdhari
Homeopathic
Medical College, Jaunpur with Shri Lal
Bahadur
Shastri
Medical
College,
Allahabad.

13. The learned Standing Counsel
appearing for the respondent nos. 1 to 4
submits that the petitioners were only
Guest Lecturers and they were not entitled
to claim any regular employment in Shri
Lal Bahadur Shastri Medical College,
Allahabad.

14. It is further submitted by the
learned Standing Counsel appearing for
the respondent nos. 1 to 4 that the
controversy involved in the present Writ
Petition has already been decided by this
Court in cases of certain other doctors,
who were similarly situated as the
petitioners in the present Writ Petition.

15. The learned Standing Counsel
appearing for the respondent nos.1 to 4
refers to the following decisions:

(1) Judgment dated 17.1.2002 in
Civil Misc. Writ Petition No. 21496 of
2001 (Dr. Vijay Pratap Singh and
another vs. State of U.P. and others).

(2) Judgment dated 30.6.2009 in
Civil Misc. Writ Petition No. 273 of
2001 (S/B) (Dr. K.K. Singh and others
vs. State of U.P. and others).

16. In Dr. Vijay Pratap Singh case
(supra), a Division Bench of this Court
has held that appointment as Guest
Lecturers confers no right to continue on
the post, and the engagement can be
discontinued at any time.

17. In Dr. K.K. Singh case (supra),
a Division Bench of this Court has opined
that the petitioners, who were merely
Guest Lecturers, have no right to claim
regular employment or continuation in the
college as "Guest Lecturers".

18. We are in respectful agreement
with the above decisions. The petitioners
in the present Writ Petition were merely
appointed as Guest Lecturers in the Year
1998
in
the
erstwhile
Tilakdhari
Homeopathic Medical College, Jaunpur.
After merger of the said college with Shri
Lal Bahadur Shastri Medical College,
Allahabad, the college did not find
necessity of having Guest Lecturers for
teaching the subjects which the petitioners
had been teaching, and therefore, the
petitioners were not continued as Guest
Lecturers. The petitioners have no right to
claim continuation as Guest Lecturers or
seek regular employment in Shri Lal
Bahadur
Shastri
Medical
College,
Allahabad.

19. In view of the above discussion,
the Writ Petition filed by the petitioners
lacks merits, and the same is liable to be
dismissed.

20. The Writ Petition is accordingly
dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.03.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 49555 Of 2010

Vishal Gupta @ Vishwapati Madan

 ...Petitioner
Versus
Sardar Mohindar Singh and others

 ...Respondents
1 All Vishal Gupta @ Vishwapati Madan Vs. Sardar Mohindar Singh and others
431
Counsel for the Petitioner:
Sri Yasharth, Sri Nitin Yasharth
Sri S.K. Mishra

Counsel for the Respondents:
C.S.C., Sri Manish Tandon

(A) U.P. Urban Buildings(Regulation of
letting,
Rent
and
eviction)Act-1972Section 20 (2)(c): Eviction of ground of
material alteration-no specific finding
regarding
diminishing
value
due
to
alternation-in absence of pleading no
question of evidence.

(A) U.P. Urban buildings(Regulation of
letting, Rent and eviction)Act 1972Section 3(g); whether adopted sonwithin
definition
of
family-revisional
court wrongly treated adopted son as
strangers to family of land lord-on
pertext adoptive mother being alive not
produced as witness-held erroneous.

Held: Para-11

All
other
ingredients
necessary
for
making an adoption valid in accordance
with provisions of Hindu Adoption and
Maintenance
Act,
1956
have
been
proved. The Revisional Court did not find
any otherwise infirmity except the fact
that, according to him, in absence of
adoptive mother, who was alive but not
produced as witness, the valid adoption
whether valid, would remain unproved.
This approach of Revisional Court, as
already discussed, I am not inclined to
approve. The judgment of Revisional
Court thus is unsustainable and deserve
to fall.

Case Law discussed:
Criminal Appeal U/S 374 Cr.P.C. no. 358 OF
1982; AIR 1996 SC 591
(Delivered by Hon'ble Sudhir Agarwal, J)

1. The writ petition having been
restored to its original number vide order
of date passed on restoration application,
as requested by learned counsel for the
parties, I proceed to decide the matter
finally at this stage.

2. Heard Sri Yasharth, learned
counsel for the petitioner and sri Manish
Tandon,
learned
counsel
for
the
respondent.

3. Sardar Mohindar Singh (now
deceased and substituted by his legal heirs
i.e. respondents no.1/1 to 1/5) instituted
Small Cause Suit No.180 of 1989 against
Mulkraj,
father
of
petitioner,
for
ejectment from the building in dispute,
which is a non-residential building
namely a shop on the ground of subletting and structural alteration. The suit
was dismissed by Small Cause Court vide
judgment dated 4th September, 2009 but
the said judgment has been reversed by
Revisional Court by allowing S.C.C.
Revision No.61 of 2009 of the plaintiffrvisionist vide impugned judgment dated
31st May, 2010. The Revisional Court has
held that tenant incurred liability for
ejectment on both the counts namely
structural alteration and sub letting.

4. Learned counsel for petitioner
submitted that judgment of Revisional
Court is patently illegal and perverse. He
submitted that under Section 20(2)(c) of
Uttar Pradesh Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972
(hereinafter referred to as "Act, 1972") a
material alteration is wholly irrelevant and
what is required to be proved by landlord is
that, tenant has made construction or
structural alteration so as to have resulted in
diminishing its value or utility or its
disfigurement.
In
the
present
case,
Revisional
Court
has
observed
that
structural alteration allegedly made by
tenant have resulted in material alteration
but there is not even a whisper in the entire
432 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Revisional Court's judgment that it has
resulted in diminishing value or utility of
property in question or has resulted in its
disfigurement.

5. Sri Manish Tandan, learned counsel
for the respondents while confronting
aforesaid aspect of the matter could neither
dispute nor place anything from judgment
of Revisional Court to show that Revisional
Court has at all found anything so as to
satisfy requirement of statute i.e. Section
20(2)(c) of Act, 1972 that alleged alteration
or construction in building is likely to
diminish its value or utility or to disfigure it.

6. In fact, I find that in the plaint
itself there is no such pleading at all and if
that is so, there is no question of any
evidence to be adduced on this aspect. It
is well established that no evidence can be
adduced in respect to a fact not pleaded.
Therefore, findings of Revisional Court
about liability of tenant for ejectment
under Section 20(2)(c) of Act, 1972 is
clearly illegal, erroneous and cannot
sustain.

7. Now, coming to the second aspect
of the matter about sub letting. The
petitioner Vishal Gulati claimed to be
adopted son of original tenant Mulkraj.
The Trial Court has found that he proved
his valid adoption which took place in
1970. The Revisional Court has taken an
otherwise
view
by
observing
that
adoption could not be proved validly and
therefore, premises in question having
been occupied by petitioner, is stranger to
the family, being not within the ambit of
definition of 'family' under Section 3(g) of
Act, 1972, the suit for ejectment of tenant
is liable to be decreed on the ground of
sub-letting.

8. Here also I find that Revisional
Court has clearly erred in law. It has
proceeded to observe that DW 1 and 2
both stated that the child under adoption
was given to only adoptive father i.e.
Mulkraj Gulati and there is no averment
that he was also given to adoptive mother.
On the contrary, from the judgment of
Trial Court, I find that DW 1 has
categorically stated that child was given
by his natural parents to the adoptive
parents. This finding of Trial Court has
not been shown perverse and Revisional
Court has not stated anywhere in the
judgment in revision that this finding of
Trial Court is misleading or misreading of
the statements of DW 1 and 2. The
Revisional Court has also proceeded to
observe that since adoptive mother was
not produced as a witness to verify about
handing over of child to her, meaning
thereby the adoption was not proved. This
approach of Revisional Court is patently
erroneous, inasmuch as, brother of natural
parents of child under adoption and
adoptive parents himself appeared as
witness i.e. DW 1. He said that he was
present at the time of adoption and
categorically asserted that child was given
by natural parents to the adoptive parents,
both. It is not necessary that a large
number of persons or parents themselves
should come in the witness box to prove
this fact particularly when what has been
said by witness, who had personal
knowledge of the event, is not found to be
doubtful or incorrect or there is any other
reason to disbelieve his deposition.

9. In taking the above view, I am
fortified by decision of this Court in
Criminal Appeal U/S 374 Cr.P.C. No.358
of 1982 (Autan (Atan) Singh & Ors. Vs.
State of U.P.) Decided on 9th November,
1 All Ram Autar Sharma Vs. District Inspector of Schools and Others
433
 2012, where in para 21 of the judgment,
this Court said:

"....it is not the number of witnesses
examined which would be of any
importance but it is the reliability and
credibility of a witness or evidence which
would determine whether the prosecution
has been successful in substantiating the
guilt against accused or not. Even a single
piece
of
evidence,
whether
oral,
documentary or circumstantial, if credible
and trustworthy, is sufficient to record
conviction against a person."

10. I also find support from Apex
Court's decision in Smt. Chandan Bilasini
(Dead) by L.R. Vs. Aftabuddin Khan &
Ors., AIR 1996 SC 591.

11. All other ingredients necessary for
making an adoption valid in accordance
with provisions of Hindu Adoption and
Maintenance Act, 1956 have been proved.
The Revisional Court did not find any
otherwise infirmity except the fact that,
according to him, in absence of adoptive
mother, who was alive but not produced as
witness, the valid adoption whether valid,
would remain unproved. This approach of
Revisional Court, as already discussed, I am
not inclined to approve. The judgment of
Revisional Court thus is unsustainable and
deserve to fall.

12. The writ petition is accordingly
allowed. The impugned order dated
31.05.2010 (Annexure No.7 to the writ
petition) passed by Additional District
Judge II, Kanpur Nagar, is hereby set
aside. The judgment dated 4.9.2009 of
Trial Court is restored and confirmed.

13. No order as to costs.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2013

BEFORE
THE HON'BLE B. AMIT STHALEKAR,J.

Civil Misc. Writ Petition No. 55196 of 2007

Ram Autar Sharma

...Petitioner
Versus
District Inspector Of Schools And Others

 ...Respondents

Counsel for the Petitioner:
Sri Indra Raj Singh

Counsel for the Respondents:
C.S.C.

U.P. Intermediate Education Act 1921,
Chapter
III
Regulation-2-out
of
5
sanctioned post of class III employee
including head clerk-2 already occupied
by
direct
promotee-under
50
%
promotion quota 2.05 posts round of as
3-petitioner being senior most class 4th
employee-promoted as clerk-disapproval
by DIOS on ground single post fall under
SC/ST quota-held-against single post-no
reservation
available-hence
existing
vacancy can not be filled up either by
direct recruitment or under reserve
quota-except by promotion.

Held: Para-11

 In the present case admittedly only one
post is available and the same could not
have been filed up by Scheduled Caste
candidate either in a promotee quota or
by releasing it for being filled up by
direct recruitment.

Case Law discussed:
(1998) 2 SCC 214; (1998) 4 SCC 1; 2010 (3)
ESC 2091; (2006) 6 SCC 430

(Delivered by Hon'ble B.Amit
Sthalekar, J.)