# Manohar Lal & ors v. The Rent Control and Eviction Officer, Kanpur Nagar & another

- **Citation:** High Court of Judicature at Allahabad #39560
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-12-19
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manohar-lal-ors-v-the-rent-control-and-eviction-officer-kanpur-nagar-another-39560
- **Pages:** 3

## Text

1ALL] Manohar Lal & ors. V. The Rent Control and Eviction Officer, Kanpur Nagar & another 17
could not have been treated as vacant
unless it was found that it was occupied by the
tenant and he had vacated. Major Nirmal alias
Nimmu was not found to have vacated the
disputed accommodation as tenant, it could
not have been declared as vacant. On the other
hand, it was stated that Major Raman Bahadur
had sold the property and his name was
wrongly mentioned in the report as Major
Nirmal alias Nimmu.

7. In view of the above, the writ petition is
allowed. The order declaring the vacancy
dated 16.2.1994 and subsequent allotment
order passed in favour of respondent No.2 are
hereby quashed.

8. The parties shall bear their own costs.

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By the Court

1. This writ petition is directed against the
order dated 19.12.1998 passed by the Rent
Control and Eviction Officer, respondent
no.1, declaring the disputed accommodation
as vacant.

2. Briefly stated the facts are that the
petitioner is admittedly tenant of House
No.8/198
Arya
Nagar,
Kanpur
Nagar.
Respondent no.2 purchased this property from
its erstwhile owner by registered deed dated
23.8.1997. He filed an application for release
on 27.3.1998 alleging that the petitioner has
inducted
his
brother
in
the
disputed
accommodation under his tenancy after 1977
and, therefore, the accommodation in question
should be deemed as vacant. The petitioner
contested the application. It was denied that
he had inducted his brother in the year 1977
but in fact they were living since the year
1969. The Rent Control and Eviction Officer
took the view that the petitioner failed to
prove that he was a Karta of the family,
therefore, he had no right to permit his brother
to occupy any portion of the house with him.
He declared the vacancy by the impugned
order dated 19.12.1998.

3. I have heard Sri P.N. Khare, learned
counsel for the petitioner and Sri S.C.
Tripathi, learned counsel for contesting
respondent.

4.
The
question
is
whether
the
accommodation can be declared as vacant on
the facts of the present case. The version of
the petitioner is that his father was tenant of
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
18
house no.8/200 Arya Nagar Kanpur Nagar.
He vacated the same in the year 1969 and
thereafter his father and brothers started living
jointly with the petitioner. It was denied that
the father of the petitioner started living with
him since 1977. The petitioner had filed the
affidavit of the landlord of house No.8/200
Arya Nagar, Kanpur Nagar wherein it has
been stated that the father of the petitioner had
vacated the house No.8/200 Arya Nagar in the
year 1969. The Rent Control and Eviction
Officer referred to two affidavits filed by
Darshan Kumar Mango and Satya Prakash
Pandey wherein they have stated that the
petitioner had permitted his brother to live
with him since 1977.

5. There was no documentary evidence to
indicate that the father of the petitioner or his
brother continued to occupy house No.8/200
Arya Nagar after 1969. On the other hand the
owner of house no.8/200 Arya Nagar filed an
affidavit stating that the father of the
petitioner had vacated it in the year 1969. The
Rent Control and Eviction Officer had not
considered
this
aspect
but
took
into
consideration the fact that the petitioner, not
being Karta of the family, had no right to
permit his brothers to live with him.

6. Secondly, it is to be further ascertained
whether the brothers of the petitioner are in
exclusive
possession
of
the
disputed
accommodation or in other words they are
living jointly with the petitioner. If a guest or
servant of the tenant lives with him, certainly
the accommodation cannot be treated as
vacant but if some of his relation live jointly
with him for certain reasons, where the tenant
has not given exclusive possession to him, the
Rent Control and Eviction Officer has to
consider that in those circumstances the
accommodation should be treated as vacant.

7.
Section 12(1)(b) of U.P. Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (in short the Act)
provides that a landlord or tenant of a building
shall be deemed to have ceased to occupy the
building or a part thereof if he has allowed it
to be occupied by any person who is not
member of his family. The meaning of word
"occupation"
must
relate
to
exclusive
possession of such person. In P.C. Jain v.
District Judge and others, 1979 (U.P.) RCC
107, the Court considered the meaning of the
word "occupy" used in clause (b) of subsection (1) of Section 12 of the Act and it was
held that the word occupation includes
possession as it is primary element but it must
be held that the premises has been occupied
by another person after the possession is
transferred to him. In case there is no element
of transfer of possession, it will not be an
occupation within the meaning of Section
12(1)(b) of the Act.

8. In Associated Hotels of India Ltd. v.
R.N. Kapoor, AIR 1959 SC 1262, while
examining the difference between the words
lease and licence it was pointed out that if a
document gives only a right to use the
property in a particular way or under certain
terms while it remains in possession and
control of the owner thereof, it will be a
licence. The Court quoted with approval the
following
observation
of
Lord
Denning
reflected in Errington v. Errington, 1952-1 All
ER 149:
"The result of all these cases is that,
although a person who is let into exclusive
possession is, 'prima facie' to be considered
to be tenant, nevertheless he will not be held
to be so if the circumstances negative any
intention to create a tenancy."

9. The question was whether the tenant had
sublet the accommodation, the Apex Court
emphasised that it is not mere possession but
there must be other relevant circumstances
particularly exclusive possession of such
person. In Resham Singh v. Raghubir Singh
and another, AIR 1999 SC 3087, where the
brother of the tenant was carrying on the
business and it was found that he was only
looking after the business particularly when
1ALL] Pradeep Narain Sharma & another V. Satya Prakash Pandey 19
his brother was involved in a criminal
proceeding and absconding, it was held that
subletting was not proved. In Ram Prakash v.
Shambhu Dayal, AIR 1960 Alld 395, where
the parties were close relations and one of
them came from Pakistan to take shelter with
the other, there was no presumption that a
sub-tenancy was created merely because the
host and his wife allowed the refugee guest to
live with them and then, for the sake of
enlarging available accommodation shifted to
another house but left a part of their family in
the old house.

10. The court is to examine the nature of
possession of such person who is alleged not
to be member of family. If his possession is in
the nature of a licensee without putting him in
exclusive possession, it cannot be taken his
occupation as contemplated under Section
12(1)(b) of the Act. The Rent Control and
Eviction Officer before declaring the vacancy
is to examine all of the aspects of the matter.

11. In view of the above the writ petition
is allowed and the order dated 19.12.1998 is
quashed. The Rent Control and Eviction
Officer shall re-determine the matter on the
question of vacancy afresh keeping in view
the
observations
made
above
and
in
accordance with law. It will be open to the
parties to lead evidence before him.

The parties shall bear their own costs.

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By the Court

1. By an order dated 3rd december,1999,
the learned District Judge, Varanasi had
decreed the S.C.C. Suit No.15 of 1999 exparte. In the said order, the rate of rent was
found as Rs.2,000/-per month and that the
revisionists defendants were defaulter for the
period January,1997 till march,1999 and he
accordingly directed payment of arrears of
rent at the said rate. Mr. P.K. Ganguly,
learned counsel for the revisionists contends
that even if an ex-parte decree is passed, the