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Sunder Das Daulat Ram And Sons (P.) Ltd. v. District Magistrate

Allahabad High Court
Sep 24, 1998
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

Special Appeal Nos. 425 and 434 of 1998

JUDGES

B.K Roy

Sudhir Narain, JJ.

ACTS

Section 29A of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.

Section 144 of the Code of Civil Procedure

Section 144, C.P.C26. Section 144, C.P.C

Rule 9, Chapter IX of the Rules

Section 144, C.P.C

Section 141, C.P.C

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Structured Summary of the Opinion

Factual and Procedural Background

This matter arises from an order dated 29.05.1998 of a learned single Judge allowing Misc. Application No. 27690 of 1997 filed by Suresh Kumar Yadav (respondent No. 5) for restitution of the Imperial Cinema property. The appeals challenge that order (Special Appeal No. 425 of 1998 and Special Appeal No. 435 of 1998).

Key factual matrix (as stated in the opinion):

  • Waqf Alai Aulad (respondent No. 3) owned the land. An agreement to lease dated 20.05.1950 was executed by the Mutwalli Smt. Irshad Jahan Begum (respondent No. 4) in favour of Sri Om Prakash Gupta to construct and run a cinema (Imperial Cinema). The lease was for 45 years with a possible 15-year extension under clause (2).
  • Appellant No. 2 (Imperial Theatre), a partnership firm, furnished the cinema and installed plant and machinery. Suresh Kumar Yadav (respondent No. 5) was appointed Manager and ran the cinema.
  • After the death of the Mutwalli who executed the lease, competing claims to Mutwalliship arose (Ishrat Jahan Begum and Mst. Shaukat Jahan Begum) and litigation followed.
  • Appellants alleged that on the midnight of 31.12.1994–01.01.1995 respondent No. 4, in collusion with respondent No. 5 and local “mafias”, forcibly entered and took possession. They filed Civil Misc. Writ Petition No. 5831 of 1995 seeking mandamus to restore possession. The Court issued interim directions (07.03.1995) directing the District Magistrate and SSP to inquire and, if allegations were true, restore possession.
  • An inquiry (report dated 20.03.1995) concluded that possession had been taken but in collusion with respondent No. 5, who had delivered possession to respondent No. 4. The learned single Judge confirmed the interim mandamus (27.11.1995) directing respondents 4 and 5 to hand back possession to petitioners; police gave possession back on 07.12.1995.
  • Respondent Nos. 3, 4 and 5 filed Special Appeal No. 954 of 1995. The Division Bench observed that forcible dispossession is illegal but, based on the District Magistrate's report, concluded that the Manager had handed over possession voluntarily to the owner; the Division Bench allowed the special appeal and set aside the single Judge's order (13.03.1995), permitting the tenants to pursue civil remedies.
  • Appellants later learned of a registered lease deed dated 12.12.1994 executed by Smt. Irshad Jahan Begum in favour of respondent No. 5's wife and mother-in-law. Appellants filed Suit No. 144 of 1996 (and obtained an interim injunction on 19.03.1996) and Suit No. 15 of 1996 (filed by the Waqf's beneficiary) seeking declaration that the 12.12.1994 lease was void.
  • Respondent No. 5 filed an application under Section 144, CPC for restoration of possession on 17.04.1997 in the writ petition, alleging that possession had been taken from him on 07.12.1995 pursuant to the single Judge's order and that after the Division Bench set aside that order he was entitled to restitution. The learned single Judge allowed the Section 144 application (29.05.1998) directing restoration of possession to the position preceding 07.12.1994.
  • The Division Bench heard appeals against that order and other issues and delivered the impugned appellate judgment reversing the restitution to respondent No. 5 and dismissing his Section 144 application.

Legal Issues Presented

  1. Whether respondent No. 5 (Suresh Kumar Yadav) was in possession of the Imperial Cinema on 7 December 1995 (the date when possession was delivered to the appellants) and, relatedly, whether he had locus standi to seek restitution.
  2. Whether respondent No. 5 was entitled to restitution of possession under Section 144, Code of Civil Procedure (and the doctrine of restitution) given the facts — including allegations of collusion and his role as manager/agent.
  3. Whether the learned single Judge was correct in allowing the application for restitution in favour of respondent No. 5 (i.e., the correctness of the single Judge's exercise of discretion and legal conclusion). The point of the court's jurisdiction over miscellaneous applications was raised but the Division Bench did not decide that jurisdictional issue on this appeal.

Arguments of the Parties

Appellants' Arguments

  • The appellants asserted that they were forcibly dispossessed on the midnight of 31.12.1994–01.01.1995 by respondent No. 4 in collusion with respondent No. 5 and local mafias; hence they sought mandamus and restoration of possession.
  • Appellants relied on statements recorded during the District Magistrate's inquiry and on the report which concluded that respondent No. 5 delivered possession to respondent No. 4 — establishing that dispossession was not the result of an independent lawful right of respondent No. 5.
  • Appellants contended that respondent No. 5 acted as manager/agent in a fiduciary capacity and had no authority to deliver possession in his personal interest or in favour of third parties (his wife and mother-in-law).
  • They pointed to the pending civil suits (including Suit No. 144 of 1996) challenging the validity of the lease dated 12.12.1994 and sought to keep resolution of title and lease validity to the civil forum; also they relied on law that a tenant cannot be evicted by force.

Respondents' Arguments (including Respondent No. 5 and Respondent No. 4)

  • Respondent No. 5 sought restitution under Section 144, CPC, asserting that possession had been taken from him on 07.12.1995 pursuant to the single Judge's order and, after that order was set aside by the Division Bench, he was entitled to restoration.
  • Respondents argued that the lease term had expired on 31.12.1994 and that respondent No. 4 had taken possession thereafter; respondent No. 4 allegedly executed a lease dated 12.12.1994 in favour of respondent No. 5's wife and mother-in-law. This was presented as a basis for respondent No. 5 (or his family) to claim possession.
  • Some respondents relied on the memo of possession and documents (e.g., rent receipts) and attempted interpretative arguments (for example, translation disputes about a Hindi word “Par”) to challenge the conclusion that respondent No. 5 had delivered possession to respondent No. 4.
  • Respondent No. 4 (Ishrat Jahan Begum) also stated in a counter-affidavit that possession was with the answering respondent and not with respondent No. 5, and disclaimed giving authority for delivery of possession in favour of respondent No. 5 or his relatives.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, (1989) 4 SCC 131 : AIR 1989 SC 2097 Establishes that tenants have a right to continue in the leased property until evicted in accordance with law (i.e., not by forcible dispossession). The Division Bench relied on this authority to emphasize that tenants cannot be evicted except by due process and that forcible dispossession is unlawful; it supported the proposition that appellants retained tenant rights absent lawful eviction.
S.N. Banerji v. Kuchwar Lime and Stone Co. Ltd., AIR 1941 PC 128 Illustrates that restitution may be refused where the party in possession has a valid underlying right (e.g., a valid lease) and placing another in possession would be inconsistent with that right. Used to show that restitution principles require examining whether returning possession would be unjust because the present possessor holds a valid legal right.
Lal Bhagwant Singh v. Sri Kishen Das, AIR 1953 SC 136 Affirms the doctrine of restitution: on reversal of a judgment the party who benefited must make restitution unless restitution would be clearly contrary to justice. Cited to explain the equitable limitations on granting restitution — the court must consider whether restitution would be contrary to justice.
Ramji Seth v. Smt. Zohra Kaimi, 1983 AWC 673 States that the court granting restitution must determine if the applicant is entitled — a trespasser is not entitled to restitution. Applied to assert that a person who is a mere trespasser or who lacks a lawful entitlement cannot claim restitution; informed the court's treatment of respondent No. 5's claim.
Mansa Tewari v. Subh Narain, AIR 1981 All 169 Addresses restitution/refund principles in particular procedural contexts (the decision noted that funds should not be refunded under Section 144 CPC where matters were pending before consolidation authorities). Referenced to show limits on the application of Section 144 and restitution remedies in pending proceedings.
Smt. Asha Devi v. Dukhi Sao, (1974) 2 SCC 492 : AIR 1974 SC 2048 Explains that the Letters Patent Appellate Court has jurisdiction to decide questions of fact and law both. Relied on to confirm the appellate court's competence to re-examine both facts and law while deciding the appeals under the Letters Patent/Rules framework.

Court's Reasoning and Analysis

The Division Bench’s reasoning proceeds in a stepwise fashion, closely grounded in the material and admissions recorded during the administrative inquiry and pleadings:

  1. Possession and the inquiry: The court reviewed the District Magistrate’s inquiry (statements of respondent No. 5 and respondent No. 4, and the report dated 20.03.1995) which concluded that respondent No. 5 (the Manager) had delivered possession to respondent No. 4. The Division Bench treated those statements as central factual material.
  2. Admissions and procedural defaults: The court emphasized that respondent No. 5 did not file a counter-affidavit in the original writ petition nor appeal the single Judge’s order of 27.11.1995. Those omissions weighed against respondent No. 5’s later claim to restitution, since his earlier statements to the inquiring officers supported the conclusion that he had handed over possession.
  3. Manager as fiduciary/agent: The court characterized respondent No. 5’s role as Manager of the appellants — a position of trust and fiduciary obligation — and concluded that he held the cinema in the capacity of an agent. The court observed that an agent in possession cannot, without authority, transfer possession for his own benefit or for third parties in a way inconsistent with the employer’s rights.
  4. Challenge to Section 144 remedy and doctrine of restitution: The court observed that Section 144, CPC is not per se applicable to writ petitions under Article 226 because of the Explanation to Section 141, CPC; nevertheless, the equitable doctrine of restitution (as reflected in Section 144 principles) can be applied in appropriate cases. The court framed restitution as an equitable remedy to be invoked only where the applicant had a right to the possession he seeks restored.
  5. Application of legal principles to facts: Applying authorities on restitution (S.N. Banerji; Lal Bhagwant Singh; Ramji Seth, etc.), the court found respondent No. 5 was not entitled to restitution because:
    • He had acted as an agent/manager and had, according to the inquiry, delivered possession to respondent No. 4 (i.e., he had colluded in transferring possession).
    • He had not shown any authority to act on behalf of his wife and mother-in-law (the purported beneficiaries of the 12.12.1994 lease), and those persons themselves had not sought restitution or authorized him to apply.
    • The validity of the 12.12.1994 lease was disputed and was the subject of pending civil litigation; the civil courts were the appropriate fora to decide title and lease validity.
  6. On the Division Bench’s earlier order: The court noted that when the Division Bench earlier set aside the single Judge’s order, it specifically left open the option for the appellants to pursue civil remedies; it did not direct restitution to respondent No. 5. Hence the single Judge’s later grant of restitution to respondent No. 5 was not mandated by the appellate order and, in the circumstances of this record, was inequitable.
  7. Equitable considerations and final conclusion: Given respondent No. 5’s fiduciary position, his admitted conduct in the inquiry, and the absence of proof of authority to claim restitution on behalf of third parties, the court concluded restitution in his favour was unjust and inequitable. The court therefore set aside the single Judge’s restitution order and dismissed respondent No. 5’s Section 144 application.

Holding and Implications

Holding:

The impugned order granting restitution to respondent No. 5 is set aside; the application filed by respondent No. 5 under Section 144, Code of Civil Procedure is dismissed; both appeals are allowed.

Consequences and implications (limited to what the opinion states):

  • Direct effect on parties: The single Judge's order dated 29.05.1998 directing restoration of possession to respondent No. 5 is quashed; respondent No. 5 is not entitled to restitution on the basis of the record before the court. The appellants in Special Appeal No. 425 of 1998 are awarded costs.
  • Relationship to ongoing civil proceedings: The Division Bench left matters of title and lease validity to the civil courts; several suits (including Suit No. 144 of 1996) remain on record contesting the validity of the 12.12.1994 lease and other rights — the appellate court’s relief did not resolve those civil disputes and expressly recognized that those matters can be litigated in the appropriate civil forums.
  • On precedent and doctrine: The court applied established principles of restitution and fiduciary duties; the opinion does not announce a new legal principle or broader precedent beyond applying settled authorities to the facts before it.

Note: This summary strictly reflects the contents of the provided opinion and does not add information beyond that text.

Show all summary ...

B.K Roy and Sudhir Narain, JJ.:— These two appeals are being disposed of by this command judgment as they arise out of an order dated 29.5.1998 passed by a learned single Judge allowing Misc. Application No. 27690 of 1997 filed by Suresh Kumar Yadav, respondent No. 5 of Civil Misc. Writ Petition No. 5831 of 1995, Sundar Das Daulat Ram and Sons (P.) Ltd. v. District Magistrate, Bareilly, for restitution of the property of Imperial Cinema building situate at College Road, Bareilly. The reference in these appeals as to the appellant and the respondents shall be with reference to Special Appeal No. 425 of 1998.

2. The facts: The facts giving rise to these appeals are that Waqf Alai Aulad, respondent No. 3 is owner of the land. Smt. Irshad Jahan Begum, (respondent No. 4) acting as Mutwalli, executed an agreement to lease of the land in question on 20th May, 1950 in favour of Sri Om Prakash Gupta for the purpose of constructing a cinema building and for running cinema theatre. The lease deed provided that the lessee can also make constructions other than cinema building like shops, etc. He was the Managing Director of petitioner No. 1. Pursuant to the lease deed, a building known as Imperial Cinema was constructed. The lease was for a period of 45 years. Clause (2) of the lease deed provided that the period of lease can be extended for a further period of 15 years. Appellant No. 2, Imperial Theatre, a sister concern and a registered partnership firm, spent amount in furnishing the cinema house and setting up the plant, machinery, generator, cooling plant, etc. and started running the cinema in the name and style of “Imperial Theatre”. Suresh Kumar Yadav, respondent No. 5, was appointed its Manager. Smt. Irshad Begum who had executed the lease deed as Mutwalli died on 4.6.1993 and thereafter a dispute arose regarding Mutwalli ship. Smt. Ishrat Jahan Begum claimed herself as Mutwalli. One Mst. Shaukat Jahan Begum also claimed as Mutwalli. A suit was filed in this respect in the civil court.

3. The appellants filed Civil Misc. Writ Petition No. 5831 of 1995 alleging that their Manager respondent No. 5, colluded with some local Mafias and Smt. Ishrat Jahan Begum, who was claiming as Mutwalli and in the mid night of 31st December, 1994 and 1st January, 1995 entered into the premises in dispute with large number of local gundas and muscleman and took its forcible possession. It was prayed that a writ of mandamus be issued commanding respondent Nos. 1 and 2 to force respondent Nos. 3, 4 and 5 to restore back the possession of the premises in dispute to the petitioner-appellants.

4. The Court passed the following interim order on 7.3.1995:

“In this petition, the allegation is that the petitioners were forcibly dispossessed by the respondents through local Mafia. This allegation is serious because no body can be dispossessed except by following the procedure of law. Hence on the facts and circumstances, I issue an interim mandamus to the D.M, Bareilly and S.S.P, Bareilly to look into the matter and if the allegations of the petitioners that they were forcibly and illegally dispossessed, are correct, they should restore possession to the petitioners forthwith or show cause within two weeks.”

5. Pursuant to the aforesaid order of this Court, respondent Nos. 1 and 2 directed the Sub-Divisional Magistrate. Sadar Bareilly and Additional Superintendent of Police, Bareilly to inquire into the matter and submit their reports. These officers, to whom the inquiry was entrusted, took statements of Suresh Kumar Yadav, (respondent No. 5) Smt. Ishrat Jahan Begum, (respondent No. 4) Smt. Shaukat Jahan Begum who was contesting the claim for Mutwalliship and B.N Gupta on behalf of the appellants. They submitted a report dated 20.3.1995 stating that possession was taken forcibly from the appellants but it was in collusion with respondent No. 5, who was working as Manager on behalf of the appellants and running the cinema on their behalf. An affidavit was also filed by the District Magistrate, Bareilly and Mohd. Mubeen Khan annexing a copy of the report. The learned single Judge after considering the report confirmed the order dated 7.3.1995 vide his order dated 27.11.1995 The order dated 27.11.1995 reads as under:

“Heard Shri R.P Goyal and Shri S.K Garg, learned counsel for the petitioner and Shri N.N Singh, learned counsel for the respondent Nos. 3, 4 and 5 and Shri Vineet Saran for Shri A.K Vishnoi, the then District Magistrate and Sri Gurbachan Lal the then Senior Superintendent of Police.

In view of the affidavits of District Magistrate and the Senior Superintendent of Police, it is evident that the respondent Nos. 4 and 5 had taken forcible possession of the premises in question instead of taking legal proceedings. Hence this forcible possession is clearly illegal and I confirm the interim mandamus dated 7.3.1995 and direct the respondent Nos. 4 and 5 to hand over possession back to the petitioner within two weeks from today. The respondent Nos. 1 and 2 will ensure that this order is complied with. However, it is open to the respondent Nos. 4 and 5 to take such legal proceedings such as civil suit or other proceedings as they may be advised.”

6. The District Magistrate, in compliance of the order dated 27th November, 1995, issued directions to the police authorities that respondent No. 5, respondent No. 4 and representative of respondent No. 3 if failed to hand over possession, it may be got handed over to the petitioner-appellants in presence of the Magistrate. The police handed over possession to the appellants on 7th December, 1995.

7. Respondent Nos. 3, 4 and 5 filed Special Appeal No. 954 of 1995 against the order passed by the learned single Judge dated 27.11.1995 The Court passed order on 8th December, 1995 to maintain status quo till 11th December, 1995. This order was extended from time to time. The Court on 11.12.1995 passed an order that the Special Appeal shall be decided along with Civil Misc. Writ Petition No. 15181 of 1995. The Division Bench held that no person can forcibly dispossess any person from his property. The Court observed as follows:

“But dispossessing a person from his property otherwise than in due course of law is different from grabbing the property by terrorising the person in possession. To capture the property forcibly by creating terror by applying brute force is not a simple case of dispossessing a person from property. In a country governed by rule of law no person can be deprived of his life, liberty and property by third degree methods, such as terrorising an manhandling the person concerned. In such a case not only the person who has been dispossessed of his property but the society itself is taken to ransom by brute force. Such an act creates terror in the minds of the people and has the effect of shaking the social fabrics of the society. These acts also hit and damage the authority of the Government with the result that the public order, peace and tranquillity of the society are disturbed. In such cases it is the duty of the Government to come to the rescue of the persons who are threatened or have been dispossessed from their property by brazen act of lawlessness.”

8. The Division Bench, however, considering the report submitted on behalf of the District Magistrate, vide order dated 13.3.1995 held that its possession was given to the owner by Sri Suresh Kumar Yadav, Manager of the appellants; the possession was handed over willingly to the owner by the employee of the appellants, who was admittedly working as a Manager and that if he had handed over possession and acted beyond his authority given to him by his employer, it cannot be said to be a case of property grabbing and passed the following operative order:

“For the reasons given above, Special Appeal is allowed. The impugned order dated 27.11.1995 passed by the learned single Judge is set aside. The petition filed by the tenants is dismissed. The tenants will have liberty to approach civil court for the appropriate relief, if so advised. In view of the facts and circumstances of the cape, there shall be no order as to costs.

March 13, 1995

Sd/- R.A Sharma, J.

Sd/- B.S Chauhan, J.”

9. Respondent No. 5 had not filed any counter-affidavit in the writ petition. He had also not filed any special appeal against the order of the learned single Judge dated 27.11.1995

10. The appellants came to know that respondent No. 5 got executed a registered lease deed in favour of Smt. Neelam, his wife and Smt. Shakuntala, his mother-in-law jointly regarding 2259.05 sq. m. of lands by Smt. Irshad Jahan Begum on 12.12.1994 in respect of the land on which Cinema building and residential house had been constructed by the appellants. The appellants filed Suit No. 144 of 1996 in the Court of Civil Judge, Senior Division on 19.3.1996 for permanent injunction restraining the defendants from interfering with their possession over the land and building in question and for further a declaration that lease deed dated 12.12.1994 is null and void and illegal. They also filed an application for grant of interim injunction. The Court passed an injunction order on 19.3.1996 restraining the defendants from dispossessing the plaintiff-appellants by force save and except in accordance with law. Notices were issued to defendants.

11. Suit No. 15 of 1996 was filed by Allah Taala through its beneficiary Iqbal Ahmad in the Court of Civil Judge (Senior Division). Bareilly for a declaration that the lease deed dated 12.12.1994 is illegal and void. Respondent No. 5 and his wife Smt. Neelam and mother-in-law Smt. Shakuntala are all defendant in both the suits.

12. Respondent No. 5 filed an application under Section 144 of the Code of Civil Procedure for restoration of possession on 17.4.1997 in Civil Misc. Writ Petition No. 5831 of 1995 on the allegation that possession was taken on 7.12.1995 from him pursuant to the order dated 27th November, 1995 passed by this Court and after the said order having been set aside, he is entitled for restoration of possession. On behalf of the appellant as well as respondent No. 4, counter-affidavits were filed asserting, inter alia that possession was not taken from him; and that he was only Manager of the appellants and was not entitled to restoration of possession over the property in dispute. The learned single Judge allowed this application by the impugned order dated 29.5.1998 and directed for restoration of possession. Following operative part of the order was passed:

“Accordingly the application is allowed. The opposite parties 1 to 4 are directed to restore the position vis-a-vis the property in question, as it obtained immediately preceding 7.12.1994, i.e, restore the possession of the property to the party dispossessed by the police force on 7.12.1994”

13. Against this order Special Appeal No. 425 of 1998 has been filed by Sundar Das Daulat Ram and Sons (P.) Ltd. and Imperial Theatre and Special Appeal No. 435 of 1998 has been filed by Waqf Alai Aulad and Mst. Ishrat Jahan Begum.

14. The Submissions, Questions involved and our Findings:

We have heard Shri S.C Budhwar, Senior Advocate and Sri H.N Singh, learned counsel for the appellants and Sri R.N Singh, learned counsel appearing on behalf of the contesting respondents at length.”

15. The first question is whether respondent No. 5 was in possession on 7th December, 1995, the date when the possession was delivered to the appellants? It must be considered in this context as to how the appellants were dispossessed and by whom. Pursuant to the order of this Court dated 7th March, 1995 an inquiry was conducted by the District Magistrate through Assistant Police Superintendent and Divisional Magistrate Sadar, Bareilly. They recorded statements of respondent No. 5 Suresh Kumar Yadav. He stated that he delivered possession to Smt. Ishrat Jahan Begum on expiry of term of the lease, which was expiring on 31st December, 1994, that Smt. Ishrat Jahan Begum came at about 12 in the night with her relatives and asked for possession; and that she put her locks in the property in dispute. Smt. Ishrat Jahan Begum made statements that she went to the cinema hall at 12 in the night with her relatives and asked Suresh Kumar Yadav to deliver possession as the period of agreement expired on 31.12.1994; that there was no application for extension of the period of lease and she is obtaining possession pursuant to the Will executed by her mother in the year 1986; and that the Manager delivered the possession. The conclusion of the report was that respondent No. 5 had delivered possession to Smt. Ishrat Jahan Begum. It was on the basis of this report that the Division Bench, while disposing of the appeal and the writ petition, held that the possession was not taken from the appellants by terrorising them; it was his Manager who delivered its possession to the appellants; Respondent No. 5 in the application under Section 144, C.P.C made averment that he was in fact in possession when the possession was taken by the police on 7.12.1995 the petitioner having himself made a statement before the Assistant Superintendent of Police and the Sub-Divisional Magistrate that he had delivered the possession to respondent No. 4, cannot urge that he remained in possession over the property in dispute; he never filed any counter-affidavit in the writ petition nor had he filed any Special Appeal challenging the version of the appellants in the writ petition or the contents of the report submitted on behalf of the District Magistrate in the writ petition.

16. Learned counsel for the respondent referred to the memo of possession filed as Annexure-2 to the application filed under Section 144, C.P.C This memo of possession recites that pursuant to the order dated 27.11.1995 passed by the Court, possession of Imperial Cinema and the residence of Manager Suresh Yadav were delivered to Shri B.N Gupta, Managing Director of Sundar Das Daulat Ram and Sons. Learned counsel for the respondents tried to translate the Hindi word Par’ as ‘from’. This contention cannot be accepted relating to preceding circumstances that the possession was delivered by respondent No. 5 to respondent No. 4. It is further contended that in the writ petition the petitioner-appellants had prayed for delivery of possession from respondent Nos. 3, 4 and 5. This prayer was made on the basis of the averments made in paragraph 12 of the writ petition, which reads as under:

“That in the mid night of 31st December, 1994 and 1st January, 1995 the respondent No. 4 in collusion with respondent No. 5 and the local Mafias entered into the premises in dispute with large number of local gundas and musclemen and to justify the illegal action a letter had been given by respondent No. 4 to respondent No. 5 a true copy whereof is being filed herewith and is marked as Annexure-3.”

17. Learned counsel for respondent No. 5 invited our attention to paragraphs 7, 18 and 20 of the plaint of Suit No. 144 of 1996 filed by the appellants. These paragraphs only refer to the proceedings pursuant to the writ petition. Paragraph 12 of the plaint categorically states that in mid night of 31.12.1994 and 1.1.1995 defendant No. 2 in collusion with defendant No. 3 and local Mafias consisting of over 40-50 masked persons, fully armed, by terrorising took possession. From this paragraph, it is clear that defendant No. 2 had taken possession in collusion with defendant No. 3, namely, Suresh Kumar Yadav. Learned counsel for the respondents has further referred to the letter alleged to have been written by Mst. Ishrat Jahan Begum, (respondent No. 4) to the District Magistrate on 31.5.1996 and the rent receipts filed as Annexures-8 and 9 to the counter-affidavit in Special Appeal No. 425 of 1998. She had made statement before the Assistant Superintendent that possession was taken by her from Suresh Kumar Yadav. These documents are subject to scrutiny in the subsequent suit which has been filed by the appellants. Smt. Ishrat Jahan Begum has filed counter-affidavit in Misc. Application No. 27690 of 1997 in paragraph 7 of which she has stated as follows:

“However; admittedly, the possession was with the answering respondent and not with respondent No. 5 applicant. In this view of the matter, respondent No. 5 has no locus standi to claim delivery possession in his favour.”

18. It was clear that respondent No. 5 had colluded with respondent No. 4 and delivered possession to her and, therefore, possession was to be restored to the appellants, as they were dispossessed on 31.12.1994/1.1.1995.

19. The second contention of learned counsel for the applicant-contesting respondent No. 5 is that after 31st December, 1994, the rights of the appellants had ceased as the period of lease had expired and after the said date, respondent No. 4 had taken the possession and after taking the possession, it was given to his wife and mother-in-law pursuant to the lease deed dated 12.12.1994 This case, however, was never set up by respondent No. 5 by filing a counter-affidavit in the writ petition. He also never preferred any Special Appeal against the order of the learned single Judge dated 27.11.1995 Only respondent Nos. 3 and 4 had filed Special Appeal. He was admittedly a Manager appointed for running the Cinema. The rent deed is alleged to have been executed in favour of his wife and mother-in-law on 12.12.1994 few days before 31st December, 1994. The possession of respondent No. 5 was in the capacity of an agent of the appellants. He has not shown that there was any authority to deliver possession to respondent No. 4. Respondent No. 5 could not deliver possession to his wife and mother-in-law pursuant to the agreement of lease alleged to have been executed by respondent No. 4 in their favour. Respondent No. 4 has filed counter-affidavit asserting that she never delivered possession. In paragraph 8 of the counter-affidavit dated 7.9.1997 filed by Ishrat Jahan Begum in Application No. 27690 of 1997, she has stated that she has not given authorisation of delivery of possession in favour of respondent No. 5, his wife and mother-in-law. Smt. Neelam, respondent No. 6 and Smt. Shakuntala Devi, respondent No. 7 in whose favour the lease deed dated 12.12.1994 is alleged to have been executed, did not file any application for restitution nor had respondent No. 5 filed any application asserting that he having power of attorney is filing the application on their behalf. In paragraph 7 of the affidavit filed in support of the application, it was stated that his possession was through his wife and mother-in-law in whose favour the lease deed was made. The title of the application did not indicate that he was filing this application on their behalf. The person who was appointed to manage the Cinema house cannot pass on possession to other persons alleging that he is in possession on their behalf instead of handing over possession to the person who had inducted him in possession as his agent.

20. There is a serious dispute regarding the validity of the lease deed dated 12.12.1994 alleged to have been executed in favour of Smt. Neelam and Smt. Shakuntala Devi. The assertion of the appellants is that this lease was executed for a period of 45 years with effect from 1.1.1950 but clause (2) of the agreement of the lease provided that it can be extended for a further period of 15 years. Further assertion of the appellants is that before the expiry of this period, the term of the lease was extended and rent was accepted for the period up to March, 1995 and Respondent No. 4 has further extended the period of lease vide letter dated 20.11.1997 Sri B.N Gupta has filed a supplementary counter-affidavit in Writ Petition No. 5831 of 1995 enclosing a copy of the letter written by respondent No. 4 extending the term of the lease till 31.12.2009 and the letter written by her to the District Magistrate informing about the extension of the lease deed. These letters have been annexed as Annexures-S.A 1 and S.A 2 to the supplementary affidavit. The appellants have filed Suit No. 144 of 1996 and in the said suit, one of the reliefs claimed is that the lease deed dated 12.12.1994 executed by Smt. Ishrat Jahan Begum be declared as null and void.

21. The contention of learned counsel for the respondents is that the lease deed, which was executed in favour of the appellants, was unregistered document and that did not create any right. The appellants' contention is that even if the lease deed was unregistered, they continued to be tenant and as they had raised the constructions with the permission of the landlord, they are protected from eviction under Section 29A of the U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It is, however, not necessary to go into the question of rights and title of the parties regarding the tenancy. It is a well-settled law that a tenant cannot be evicted by force. In Special Appeal No. 583 of 1995, the Division Bench, relying upon Krishna Ram Mahale v. Mrs. Shobha Venkat Rao, (1989) 4 SCC 131 : AIR 1989 SC 2097, has held that the tenants have a right to continue in the property leased till they are evicted in accordance with law. The appellants were admittedly not evicted through the process of the Court.

22. There is another aspect in regard to the lease deed dated 12.12.1994 The appellants had taken the lease in respect of the land. Appellant No. 1 had constructed the Cinema house and appellant No. 2 installed the plant and machinery for running the Cinema. The lease deed pertains to the land. The constructions have yet not been demolished or removed. Respondent No. 5 cannot retain the possession of the Cinema building and other constructions raised on the land pursuant to the lease deed dated 12.12.1994 Clause (5) of the agreement provided that after expiry of the term of the lease, the lessee shall remove the constructions or if the lessor agrees, he can purchase such constructions. In case the constructions are not removed, a suit can be filed for possession over the land and it will be open to the lessee to remove the constructions and unless possession is taken, after removal of the constructions, the subsequent lessee cannot take possession of the constructions.

23. The doctrine of restitution is based on equitable principle. In S.N Banerji v. Kuchwar Lime and Stone Co. Ltd., AIR 1941 PC 128, the appellants therein applied for restitution on the ground that they had been dispossessed on account of order of the Court, and thus they should be restored possession. The Privy Council found that the respondent-company had a valid lease and the forfeiture of its lease by the Government being invalid, respondent-company was entitled to remain in possession and the appellants-company had no right to obtain lease of such land and rejected the application for restitution filed by it recording following observations:

“There is in existence a valid lease to the respondent company; and the lessors could grant to the appellants no rights inconsistent with it. In other words, the respondents are lawfully in possession of the premises, and it cannot be necessary for the ends of justice to oust them and put into possession the appellants who, when in, would have no right to retain possession.”

24. In Lal Bhagwant Singh v. Sri Kishen Das, AIR 1953 SC 136, wherein the appellant claimed restitution, it was held that he having defaulted in payment of the instalments under the decree was not entitled for restitution as the order of restitution in the circumstances of the case would be contrary to the principles of the doctrine of restitution which is that on the reversal of a judgment, the law raises an obligation on the party to the record who received the benefit of the erroneous judgment to make restitution to the other party for what he had lost and that it is the duty of the Court to enforce that obligation unless it is shown that restitution would be clearly contrary to the interest of justice.

25. In Ramji Seth…(); v. Smt. Zohra Kaimi…()., 1983 AWC 673, it was held that it is to be determined by the Court granting restitution that the party, who had given application, is entitled to the benefit of the restitution. A person, who is a mere trespasser, is not entitled to restitution of possession. In Mansa Tewari v. Subh Narain, AIR 1981 All 169, where the suit in appeal was abated but after such abatement, an application was filed for refund of the amount deposited by the applicants during the pendency of the suit, it was held that as the matter was pending before the consolidation authorities, the amount should not be refunded to the applicants under Section 144, C.P.C

26. Section 144, C.P.C is per se not applicable to writ petitions under Article 226 of the Constitution in view of the Explanation attached to Section 141, C.P.C The doctrine of restitution, however, can be applied in appropriate cases following the principles laid down under Section 144, C.P.C The Court has an inherent power to place a person in possession which he would have been entitled to prior to the passing of the order by the Court by which he has been deprived of any right which was existing in his favour. The Court acts “Ex debitio justiciae”. This has to be examined in each case as to what right the applicant had before he was dispossessed from the property in question.

27. In the present case, Suresh Kumar Yadav-respondent No. 5 was appointed as Manager to run the Imperial Cinema. He had not denied this position. He was in fiduciary relation towards the appellants. His position was one involving confidence and the discharge of duties towards his employer. He was in possession of the Cinema building in the capacity of their agent. The duty of fidelity imposes on employee not only skillful performance of the work entrusted to him but also negative duty of refraining from deception and from entering into relations giving him an interest inconsistent with that of the employer. He was admittedly in possession on 31.12.1994 in the capacity of a Manager but the report submitted on behalf of the District Magistrate clearly indicated that he colluded with respondent No. 4 and delivered possession to her. He subsequently cannot turn and say that he is now in possession on behalf of his wife and mother-in-law who are alleged to have obtained lease from respondent No. 4 which is still subject-matter of the dispute in the suit.

28. The Division Bench had dismissed the writ petition and set aside the order of the learned single Judge dated 27.11.1985, but it was observed that if the petitioner-appellants are so advised, may file a suit in regard to their rights. This order was passed obviously in the context that if the petitioner-appellants were dispossessed forcibly, they can file a suit in the Court claiming their rights. It was open to the Division Bench, while setting aside the order of the learned single Judge, to direct for restitution of possession to the respondents but the Court did not pass such an order and left the matter for the civil court to pass an appropriate order. The appellants have filed a suit and obtained injunction order that they will not be dispossessed except in accordance with law. The dispute regarding the validity of the lease deed dated 12.12.1994 is also the subject-matter of the suit. Respondent No. 5, his wife and mother-in-law all are parties to his suit. They can contest the matter establishing their rights.

29. As regards Irshad Jahan Begum (Respondent No. 4), who was claiming her possession against the appellants on the basis that the term of the lease had expired, has herself filed Special Appeal No. 434 of 1998 against the order of the learned single Judge granting restitution of the property in question in favour of Respondent No. 5 asserting that he is not entitled to the restitution of the property in question. She has disclaimed that any possession was handed over by her to Respondent No. 5, his wife or mother-in-law.

30. Respondent No. 5 himself does not claim any right over the property in dispute. The restitution of the property in favour of respondent No. 5, in these circumstances, was unjust and inequitable. These appeals though under Rule 9, Chapter IX of the Rules of the Court are really under Clause 10 of the Letters Patent. The Letters Patent Appellate Court has jurisdiction to decide questions of facts and law both. See the Apex Court decision in Smt. Asha Devi v. Dukhi Sao, (1974) 2 SCC 492 : AIR 1974 SC 2048. Accordingly, we are of the view that the learned single Judge was not correct in allowing restitution in favour of respondent No. 5.

31. Learned counsel for the appellants also urged that the learned single Judge had no jurisdiction to decide the miscellaneous applications. We, however, do not express any opinion in the matter as the appeals are being allowed against order of the learned single Judge on merits.

32. In view of the above discussions, the impugned order passed by the learned single Judge is set aside and the application filed by respondent No. 5 under Section 144, C.P.C is dismissed.

33. These two appeals are allowed. The appellants of Special Appeal No. 425 of 1998 are entitled to for costs.

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