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PETITIONER: OM PRAKASH & ORS.

       Vs.

RESPONDENT: R. K . LAKRA

DATE OF JUDGMENT22/07/1988

BENCH: KANIA, M.H. BENCH: KANIA, M.H. SINGH, K.N. (J)

CITATION:  1988 AIR 1698            1988 SCR  Supl. (1) 556  1988 SCC  (4) 705        JT 1988 (3)   370  1988 SCALE  (2)98

ACT:      Jammu and  Kashmir Houses  and Shops  Rent Control Act, 1966: Section  11-Wasidar in  respect of  land-Sub-leased-on expiry of  sublease whether Wasidar entitled to evict tenant for bona fide occupation.

HEADNOTE:      The land  in question  was granted  to  one  A  by  the Government of  Kashmir and  as per  the practice  prevailing there, he  was shown as Wasidar in respect of the said land. On his death, his son inherited the leasehold rights. On the death  of  the  son,  his  widow  inherited  the  same.  The appellants are  the heirs  and legal  representatives of the widow.      A’s son,  during his  lifetime, had granted a sub-lease of the  said land  to the  Respondent’s father. The widow of A’s son  instituted a suit for recovery of possession of the said land on the grounds that there was unlawful sub-letting by the  sub-lessee, the  land was required for occupation by her and  her family,  and that  the period  of sub-lease had expired. The  Respondent contended  that the  sub-lease  was void ab  initio. The  Sub-Judge held  that the sub-lease was valid and  the grounds  of  bona  fide  requirement  of  the appellants’ mother  as well  as unlawful  sub-letting by the sub-lessee had  been established. On these findings the suit was decreed.      on appeal,  the Additional  District Judge  upheld  the decision. In the second appeal before the High Court, it was contended that  the transfer  made was of a mere interest in the lease-hold  and did not amount to a transfer of the land leased, as  contemplated under Rule 35 of the Wasidar Rules. Rejecting the contention, but without considering as to what would be  the effect  of the  sub-lease being void, the High Court came  to the  conclusion that in view of the sub-lease being  void,  the  suit  filed  by  the  appellant  must  be dismissed. This  appeal, by  special leave,  is against  the aforesaid decision.      on behalf  of the  appellants, the contentions urged in the Courts  below, were  reiterated before  this Court.  The Respondent relied  on Section 12-A of the Jammu Kashmir Land Grants Act,  1960 as  amended in 1969 and contended that the

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sub-lease was admittedly 557 granted without  the permission of the Government and so the lease granted  by the  Government had  come to  an end:  the title of  the appellants  to the  said land had extinguished and they were not entitled to sue for recovery of possession of the said land.      Allowing the appeal, ^      HELD: 1.  Even assuming  that the sub-lease granted was void, the  result would  be that  the Respondent  his father would be  persons without  any legal  interest in  the  said land. The appellants being the lessees of the said land were suing on  their own  title and  not relying on the sub-lease hence they  were entitled to evict the Respondent who had no title or  interest in  the said  l . If a view is taken that the sub-lease  was valid, in that event, as held by both the Courts below,  as grounds for eviction set out in Section 11 of the  Jammu &  Kashmir Houses  and Shops  Rent Control Act have been  made out, the Respondent ceased to be entitled to the protection  of the said Act and was liable to be evicted as the term of his sub-lease had expired. [559E-G]      2. It was not contended by the Respondent in any of the Courts below  that the  title  of  the  Appellants  and  his predecessors-in-title to  the  said  land  under  the  lease granted by  the Govermnent  had come to an end. Had the plea been taken earlier, it is possible that the Appellants might have pleaded  facts to show that their lease had not come to an end  or that  it had been renewed after the sub-lease was granted. Hence,  allowing such  a plea  at this  stage might cause prejudice to the Appellants. [560D-E]      3. As regards the sub-letting by the Respondent and his father and  the bona fide requirement of appellants’ mother, these are  both essentially  issues of  fact and  have  been decided in  favour  of  the  Appellants’  mother  and  their predecessors-in-title. Those  findings do not appear to have been seriously  challenged before  the High Court at all and hence there  is no  reason to  go into  the question  as  to whether those findings are correct, in this appeal. [561B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2821 of 1987      From the Judgment and order dated 4.9.1986 of the Jammu and Kashmir High Court in 15 Civil 2nd Appeal of 1975.      D.D. Thakur,  E.C. Agarwal,  Atul Sharma,  Vijay Pandit and 558 Ms. Poornima Bhatt, for the Appellants.      Anil Dev  Singh, Dr.  Meera Agarwal,  R.C.  Mishra  and Mushtaq Ahmed, for the Respondent.      The Judgment of the Court was delivered by      KANIA, J.  This is  an appeal against the judgment of a learned Single Judge of the High Court of Jammu & Kashmir in a Second  Appeal. The  Appellants are  the heirs  and  legal representatives of  one Indro  Devi. The  Respondent is  the heir and legal representative of one Raghunath Dass Lakra.      Very few  facts are  necessary for  the disposal of the Appeal before  us. The  dispute relates  to a  piece of land measuring 4 marlas and 99 sq. ft. situated at Residency Road in Jammu.  This land  was granted  to one Attar Chand by the Government of  Kashmir on  a long lease. As per the practice prevailing in  the State  of Jammu & Kashmir he was known as

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the Wasidar  in respect  of the  said land. On his death his son Guranditta  Mal inherited the lease-hold rights of Attar Chand and  on the  death of  Guranditta Mal  his widow Indro Devi, who  was the  original plaintiff, inherited the lease- hold rights  under the  said lease  on the  basis of  a Will executed by  Guranditta Mal  in her  favour. Guranditta Mal, during his  life time,  in 1954,  had granted a sub-lease of the said  land to  Raghunath, the  father of  the Respondent herein. Indro  Devi instituted  a suit  in the  Court of the learned Sub-Judge,  Jammu for  recovery of possession of the said land  on the ground that Reghunath Dass had sub-let the house constructed by Raghunath Dass on the said land and was liable to be evicted under the provisions of the Transfer of Property Act  read with  Section 11  of the  Jammu & Kashmir Houses and  Shops Rent  Control Act (hereinafter referred to as the  "J &  K Rent Act"). She also contended that the land was required  by her bona fide for occupation by her and her family. The  period of the said sub-lease had expired and it was  alleged   that  in  the  aforesaid  circumstances,  the respondent was liable to be evicted.      These allegations were denied by the Respondent. It was inter alia  contended by  the Respondent  that the sub-lease granted to  Raghunath was void ab initio. It was held by the learned Sub-Judge  that the  ground of bona fide requirement of the  landlord as well as unlawful sub-letting by the sub- lessee had  been established.  It was  further held that the sub-lease granted by Guranditta Mal to 559 Raghunath was valid. On these findings the suit was decreed. This decision  was upheld  on first  appeal by  the  learned Additional District  Judge, Jammu  before whom an appeal was preferred and  the findings  of the  learned Sub-Judge  were upheld by  him. On  a Second  Appeal preferred  to the  High Court, the  learned Single  Judge of the High Court took the view  that  the  sub-lease  granted  by  Guranditta  Mal  to Raghunath Dass  was void  as it  violated the  provisions of Rule 35  of Wasidari  Rules in  as much  as it amounted to a transfer of  immovable property  and hence  it amounted to a transfer of the leased land by the Government to the Wasidar under the  provisions of the Wasidari Rules As no permission of the  Government was taken for granting the said sub-lease the sub-lease  was void  as against  the provisions  of  the Wasdari  Rules.   The  learned  Single  Judge  rejected  the contention urged on behalf of the Appellants herein that the transfer made  by Guranditta  Mal was  of a mere interest in the lease-hold  and did not amount to a transfer of the land leased as  contemplated under  Rule 35  of the said Wasidari Rules. The  learned Single  Judge, without  considering what would be  the effect of the sub-lease being void has somehow come to  the conclusion that, in view of the sub-lease being void, the  suit filed  by  the  Appellants  herein  must  be dismissed and  took the  view that  the  appeal  before  the learned Judge  must be  allowed and  the suit  filed by  the Appellants must  be dismissed.  It is this decision which is challenged by the Appellants in the present Appeal preferred by Special Leave.      In our  view, the Appeal can be shortly disposed of and the Appellants  are entitled  to succeed. Even assuming that the  sub-lease  granted  by  Guranditta  Mal  in  favour  of Raghunath, the father of the Respondent-was void, the result would be that the Respondent and his father would be persons without any  legal interest in the said land. Indro Devi and the Appellants being the lessees of the said land were suing on their  own title  and not  relying on  the sub-lease  and hence they  were entitled to evict the Respondent who had no

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title or  interest in the said land. If a view is taken that the sub-lease  in favour  of Raghunath  was valid,  in  that event, as  held by  both the  Courts below,  as grounds  for eviction set  out in  Section 11  of the J & K Rent Act have been made  out, the  Respondent ceased to be entitled to the protection of  the said  Act and was liable to be evicted as the term of his sub-lease had expired.      It was  strenuously sought  to be contended by Mr. Anil Dev Singh,  learned Counsel  for  the  Respondent  that  the provisions of Section 12A af the Jammu & Kashmir Land Grants Act, 1960, as 560 amended in  1969 by  the Jammu & Kashmir Land Grants (Amend- ment) Act,  1969 provided that if any person holding land on lease granted  under that  Act or  under any  of  the  rules referred to in the said section effects or has ever effected before the commencement of the said Act of 1969, transfer of any right  in  such  land  without  the  permission  of  the Government or  any authority  empowered in  that behalf, the lease of  such land  would be determined and would be deemed always to  have been  determined with  effect from  the date such transfer  is or  has been effected. It was submitted by him  that   the  land  held  by  the  Appellants  and  their predecessors-in-title from  the Government was under a lease granted under  some of the rules referred to in Section 12A. It was  contended by  him that  the sub-lease was admittedly granted without the permission of the Government and in view of the  said sub-lease  granted by Guranditta Mal, the title of Guranditta Mal and his successors in the land in question under the  lease granted by the Government itself came to an end. It  was urged  by him  that in  these circumstances the title of  the Appellants  to the  said land  had itself been extinguished and  they were not entitled to sue for recovery of possession of the said land. In our view, this contention is not  open to  the  Respondent  at  all.  It  was  nowhere contended by  the Respondent, either before the learned Sub- Judge or before the Additional District Judge or even in the Second Appeal  before the  High Court, that the title of the Appellants and  his predecessors-in-title  to the  said land under the lease granted by the Government had come to an end in the  aforestated circumstances.  Had the  plea been taken earlier, it  is possible  that  the  Appellants  might  have pleaded facts  to show  that their  lease had not come to an end or  that it  had been  renewed after  the sub-lease  was granted. Hence,  allowing such  a plea  at this  stage might cause prejudice  to the  Appellants. Some  decisions of this Court were  shown to  us by  Mr. Anil  Dev Singh where a new plea purely based on law was allowed to be taken even at the stage of  the Appeal  before the  Supreme Court. However, in our view,  those decisions  can have no application whatever in a  case like  one before us where allowing of such a plea might cause prejudice to the Appellants.      In our  opinion, it  is unfortunate  that  the  learned Single Judge of the High Court who decided the Second Appeal did not  proceed to  consider at  all the effect of the sub- lease granted  to  Raghunath  being  void  and  we  find  it difficult to understand how, merely on the basis of the sub- lease being  void, he  came to  the conclusion that the suit filed by  Indro Devi  in the  Court of learned Sub-Judge was liable to  be dismissed.  Had the  learned Judge  considered this  point,   he  would   have  surely  realised  that  the Respondent had no title in the said land in view 561 Of the  sub-lease being void and was liable to be evicted by a party suing on his own title.

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    Coming to  the finding regarding the sub-letting by the respondent and  his father  and the bona fide requirement of Indro Devi,  these are  both essentially  issues of fact and have been decided in favour of Indro Devi, the mother of the Appellants and their predecessors-intitle. Those findings do not appear to have been seriously challenged before the High Court at  all and  hence there is no reason why we should go into the  question as to whether those findings are correct, in this appeal.      In the  result, the appeal succceds and is allowed. The judgment of  the learned  Single  Judge  is  set  aside  and judgment and  other  passed  by  the  learned  Sub-Judge  is restored. However, consider, all the facts and circumstances of the  case, we  are of the view that the parties must bear and pay  their own  costs in this Court are there will be an order accordingly. G.N.                                    Appeal allowed. 562