OM PARKASH & ORS.versusR.K. LAKRA

                           OM PARKASH & ORS.
A                                       v.
                                 R.K. LAKRA

                                JULY 22, 1988

B                  [K.N. SINGH AND M.H. KANIA, JJ.J

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

          The land in question was granted to one A by the Government of
c   Kashmir and as per the practice prevailing there, he was shown as
    W asidar 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.

D          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 occu-
    pation hY her and her family, and that the period of sub-lease had
    expired. The Respondent· contended that the sub-lease was void ab
E   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 heen established. On these findings the
    suit was decreed.

          On appeal, the Additional District Judge upheld the decision. In
F   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, <ts 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,
G   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
H   amended in 1969 and contended that the sub-lease was admittedly
                                       556
                        OM PARKASH v. R.K. LAKRA                          557

granted without the permission of the Government and so the lease
                                                                                 A
granted by the Government bad come to an end: the title of the appel-
lants to the said land bad extinguished and they were not entitled to sue
for rcovery of possession of the said land.

       AUowing the appeal,
                                                                                 B
          HELD: 1. Even assuming that the sub-lease granted was void, the
  result would be that the Respondent and his father would be persons
  without any legal interest in the said land. The appeUants being the
  lessees of the said land were suing on their own title and not relying on
  tl!ie sub-lease and hence they were entitled to ev.ict the Respondent who
· had no title or interest in the said land. If a view is taken that the
                                                                                 (:.
  sub-lease was valid, inJhat event, as held by both the Courts ·below, 1i$
  grounds for eViction set out in Section 11 ofthe Janitini & Kashmir
  Hiouses and Shops R~nt Control Act have been made out, the Respon-
  dent ceased to be entitled to the protection of the said Act aiid was liable
  to be evicted as the tetjn of bis sob-Iea8e had expired. [559E-G]

      2. It was not eonfended by tlie Respoil'iient Iii ·any of tile Courts
below that the title of the AppeUants and his predecessors-in-title to the
said land under the lease granted by the Government 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,             E
allowing such a plea at this stage might cause prejudice to the
Appellants. [560D-E]

       3. As regards the sub•lettiog by the Respondent and ·his fatlier
and the bona fide requirement of ap~llants' motlier, these are ooth
essentially issues of fact and have been decided in favour of the Appel-         F
lants,' 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. [561Bl

      CIVIL APPELLATE. JURlSDICTION: Civil Appeal No. 2821                       G
of 1987.

    From the Judgment and Order dated 4.9.1986 of the Jammu and
Kashmir High Court in 15 Civil ind Appeal of 1975.

       D.D. Thakur, E.C. Agarwa\, Atul Sharma, Vijay Pandit and                  H
                                                                                 c
    558         SUPREME COURT REPORTS                [1988] Supp. 1 S.C.R.


A   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
B

          KANIA, J. This is an appeal against the judgment of a learned
    Single Judge of the High Court of J ammu & 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.
c
          Very few facts are necessary for the disposal of the Appeal
    before us. The dispute relates to a pjece 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
D   lease. As per the practice prevailing in the State of Jammu & Kashm.ir
    he was known as 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 Indra 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.
E   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
F   Transfer of Property Act read with Section 11 of the Jammu & Kash-
    mir 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 arid it was alleged that in the aforesaid
    circumstances, the respondent was liable to be evicted.
G
          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
H   further held that the sub-lease granted by Guranditta Mal to
                 OM PARKASH v. R.K. LAKRA [KANIA, J.)                '·'!, 559

 Raghunath was valid. On these findings the suit }Vas decreed. This
 decision was upheld on first appeal by the learned Additional District
                                                                                 A
 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             B
 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 6l.lb-lease the sub-lease was void as against the provisions of the
 Was1dari Rules. The learned Single Judge rejected the contention
 urged on behalf of the Appellants herein that the transfer made by              c
 Guranditta Mal was of a mere interest in the lease-hold aitd did not
 amount to a transfer of the land leased as contemplated 'under Rule 35
 of tbe said Wasidari Rules. The learned Single Judge, without consi-
 deri11g what would be the effect of the sub-lease being void has some-
 how come to the condusion that, in view of the sub-lease being void,            D
 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 di~ri"iissed. It is this decision which
 is cb.allenged by the Appellants in ':!!!;"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 F
  suing on their own title and not relying on the sub-lease and hence they ·
  were entitled to evict the Respondent who had no title or interest in
  the said la.ad. 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 G
  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. Respondel'll that the provisions. of
 Section 12A of the Jammu & Kashmir Land Grants Act, 1960, as                    H
     560          SUPREME COURT REPORTS                 [1988) Supp. 1 S.C.R.

      amended in 1969 by the Jammu & Kashmir Land Grants (Amend'
 A    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
  B behalf, the lease of such land would be determined and would be
       de.emed 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
       Iield· by .the Appellants and their predecessors-in-title from the Govern-
       ment 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 admit-
       tedly granted without the permission of the Government and in view of
  C 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 bee!! extinguished and they were not entitled to sue for recovery
  D 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 Respon-
       dent, 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
  E 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
. F 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 I.earned Single Judge of
 G   the High Court who decided the Second Appeal did not proceed to
     consider ai 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
 H   sureiy realised that the Respondent had no title in the said lani! iii view
               OM PARKASH v. R.K. LAKRA [KANIA, J.)                  561

of the sub-lease being void and was liable to be evicted by a party suing   A
on his own title.


       Coming to the finding regarding the sub-letting by the Respon­
dent and his father and the bona fide requirement of lndro Devi, these
are both essentially issues of fact and have been decided in favour of
                                                                            B
lndro D evi, the mother of the Appellants 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 why we
should go into the question as to wheth.er those findings are correct, in
this appeal.


       In the result, the appeal succeeds and is allowed. The judgment      c
of the learned Single Judge is set aside and judgment and order passed
by the learned Sub-Judge is restored. However, considering 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 and there will be an
order accordingly.
                                                                            0
G.N.                                                    Appeal allowed.