P.K. Jain, J.
1. Suit No. 1046 of 1985 was filed by M/s. Naya Sahitya Prakashan through its proprietor Sri Markandey Singh, son of Thakur Singh, who is an appellant in the present appeal, claiming the reliefs of permanent injunction restraining the defendants from evicting the plaintiff from the suit property in execution of the release order dated 28.4.1980 under Section 21 of U. P. Act 13 of 1972, passed by the First Additional District Judge. Allahabad, in Rent Control Appeal No. 657 of 1979 and further declaring that the said order is non est, void and inoperative against the plaintiff and the plaintiff cannot be ejected from the accommodation in his tenancy in building No. 2-D/12, Minto Road. Allahabad.
2. The plaint allegations in abort were that the plaintiff is a proprietorship firm and proprietor of the firm is tenant of part of the building which is shown by red colour in the plaint map. Defendant No. 1 is landlord and defendant No. 2 is also tenant of part of the said building shown by blue colour. Originally the father of the proprietor of plaintiff was Inducted as tenant in the year 1950 and defendant No. 2 became tenant in the year 1964. The defendant No, 1 Issued rent receipts prior to December. 1960 but from December, 1960, defendant No. 1 stopped issuing rent receipts. Certainportion in the tenancy of the plaintiff and defendant No. 2 was common. The plaintiff had been using kitchen, latrine, bath room, court yard and open lawn and appurtenant land with the permission of defendant No. 2. Defendant No. 1 in collusion with, defendant No. 2 and without notice and consent of the plaintiff filed a case under Section 21 of the U. P. Act 13 of 1972 and in Rent Control Appeal No. 657 of 1979 obtained an order of release against defendant No. 2 in respect of entire building except one room. Defendant No. 2 had filed a writ petition in the High Court which was allowed and the appellate court was directed to redecide the appeal after following the procedure laid down in Rule 16 (1) of the Rules framed under U. P. Act 13 of 1972. Order dated 28.4.1980 passed in appeal by the appellate court arising out of P. A. Case No. 63 of 1965 was void and not effective against the plaintiff and he cannot be evicted pursuant to the said order. On 16.12.1985, defendant No. 1 threatened to evict the plaintiff taking advantage of order dated 28.4.1980 and then the suit was filed. It was also alleged that since tenancy of the plaintiff was continuing from before enforcement of U. P. Act 13 of 1972, the rights of the plaintiff were saved by provisions of Section 14 of the said Act. It was also stated in the plaint that order dated 28.4.1980 has been obtained by playing fraud.
3. Defendant No. 1 contested the suit on the grounds that there is no firm in the name and style of Naya Sahitya Prakashan and the suit filed by the said firm is not maintainable. The alleged firm or Its proprietor Sri Markandey Singh is not tenant of any part of the building in question nor is firm or alleged firm's proprietor in possession of the same. Sri Krishna Das husband of defendant No. 2 was tenant of the entire premises No. 2-D/12, Minto Road, Allahabad. During life time of Sri Krishna Das, the tenant, defendant No. 1 instituted proceedings under Section 21 of the U. P. Act 13 of 1972 for release of the tenanted property. The application was allowed in appeal under Section 22 of the said Act. Sri Krishna Dasfiled Civil Misc. Writ Petition No. 6444 of 1980 which was allowed by the High Court and the case was remanded to the appellate court for following the provisions of Rule 16 (1) (d) of the Rules under U. P. Act 13 of 1972. The appeal was again decided by Judgment and order dated 24.9.1985 and the entire building except one room on the southern side was released in favour of defendant No. 1, in proceedings under Section 21 the defendant No. 1 had asserted that Sri Krishna Das had illegally permitted Sri Markandey Singh to occupy some portion but the tenant Sri Krishna Das denied the same and asserted that Sri Markandey Singh was only a collaborator with him in his work and that Sri Markandey Singh has given his address only for purpose of receiving his malls. It was further alleged that Markandey Singh was actively doing pairvi in the case of late Sri Krishna Das and after his death on behalf of his widow Smt Sarojni pas defendant No. 2 at every stage of proceedings and he was in know of all the facts Involved in the said proceedings. As a matter of fact Sri Markandey Singh was pairokar of late Sri Krishna Das and Smt. Sarojni Das and when they could not succeed after long and hotly contested litigation, plaintiff has come forward by filing the present frivolous suit with concocted allegations. The plaintiff-was never admitted to the tenancy of any part or portion of the premises in question and there never existed any contract of tenancy between the plaintiff and the defendant No. 1 or his late father at any point of time and no rent was ever paid by the plaintiff to defendant No. 1 or her father. The alleged receipts of rent relied by the plaintiff are fabricated and forged documents. There is no collusion between the defendant No. 1 and defendant No. 2. The proceedings under Section 22 was hotly contested. The plaintiff thus has no right to file the present suit.
4. The trial court framed a number of issues. The main issues were issues No. 1, 2 and 3 which were to the following effect:
1. Whether the plaintiff is tenant of disputed property as shown in the plaint-map on a rent of Rs. 50 per month?
2. Whether the plaintiff was living in the disputed property to which Sri Krishna Das had no legal right in the property?
3. Whether order dated 28.4.80 passed by Second Additional District Judge in Appeal Wo. 65 of 1979. Abdul Mohi Khan v. Sri Krishna Das, is not binding upon the plaintiff?
5. On consideration of the evidence, the trial court recorded finding of fact on issues No. 1 and 2 against the plaintiff. The trial court recorded specific finding of fact that the plaintiffs claim that the order in Rent Control Appeal No. 657 of 1979 was obtained by defendant No. 1 in collusion with defendant No. 2 cannot be accepted. That order dated 28.4.80 was set aside by the High Court in Civil Misc. Writ Petition No. 6444 of 1980, therefore, the question of declaring order dated 28.4.80 as null and void and ineffective against the plaintiff does not arise, that the appeal was decided by order dated 24.9.1995 and thereafter defendant No. 2 had filed writ petition in the High Court which was dismissed on 20.12.1985. The trial court also recorded a finding of fact that the plaintiff was not tenant of defendant No. 1 in respect of the suit premises at the rate of Rs. 50 per month and he was staying in the suit property with Sri Krishna Das and he had no right or interest in the suit property. With regard to issue No. 3, the finding recorded by the trial court was that the plaintiff was occupying the house in question in collusion with defendant No. 2 and the order dated 24.9.1985 was binding upon him.
6. In first appeal filed by the appellant, the lower appellate court affirmed the findings of fact recorded by the trial court. In its judgment, the lower appellate court observed that the burden of proving that theplaintiff was tenant of the house in question was upon the plaintiff. Besides oral evidence he had produced paper No. 10A dated 20.10.1960 which is said to be a receipt Issued by Abdul Mohi Khan in favour of the plaintiff. The landlord-defendant had admitted that the receipt was written by him and it did bear his signatures but he added that two lines in the beginning were not written by him. In these lines it appeared that the receipt was shown to have been issued in the name of Naya Sahitya Prakashan. The lower appellate court observed that according to the evidence of landlord-defendant these lines were written subsequently. The receipt was given to Sri Krishna Das and by using ink remover the earlier two lines were washed out and in its place Naya Sahitya Prakashan was written. The Court had observed that it concurred with the findings of the trial court that there is difference in the writing of the two scripts as well as ink and the explanation submitted by the defend ant-landlord was correct and the document was being used by making interpolation in it. The lower appellate court then considered another document by which the tenant was asked to pay rent. This is a small slip which is said to have been sent on December 20. The plaintiff claimed that this letter was sent by the landlord-defend ant to the plaintiff for payment of rent. The landlord-defendant did not admit this fact and the Court observed that on perusal of the document it does not appear as to whom the slip was sent and to which house it related, how much was the rent and on which date it was written. Though the landlord had admitted his signatures on the said slip but had stated that the slip was sent to Sri Krishna Das whom he admitted to be a tenant. The Court has categorically observed that the upper portion of the slip was torn away and thereafter the slip has been utilized by the plaintiff. As number of documents were filed by the plaintiff showing that he was sitting tenant in the disputed house and a lot of correspondence right from the year 1958 with various parties was doneupon the said address. The bills of the telephone of December, 1963, June, 1964 and October. 1965 were also in the name of M/s. Naya Sahitya Prakashan, 2-D Minto Road, Allahabad. The lower appellate court while considering these documents observed that if the plaintiff used the address of Sri Krishna Das in connection with his business then It will not affect the landlord-defendant and on this basis the plaintiff cannot be held to be a tenant. The lower appellate court observed that according to the statement of defendant Mohi Khan Sri Krishna Das had told him that Sri Markandey Singh is a man relating to his business and Sri Markandey Singh was helping him in the business. In such a situation if certain letters or correspondence of Markandey Singh were received at the address of the tenant Sri Krishna Das it will not create tenancy right in the accommodation in question. It was also observed by the lower appellate court that the plaintiff claimed that he was tenant since 1950 whereas Sri Krishna Das was Inducted as tenant since 1954. If this statement is correct then he should have produced any document prior to 1954, the lower appellate court also considered the application dated 19.6.73 moved by Markandey Singh for allotment of the accommodation in question. In the application he had given the address of 2-D Minto Road, Allahabad stating that he was living in the accommodation with permission of Sri Krishna Das. During cross-examination the plaintiff has admitted, to have moved this application. The Court observed that the plaintiff has failed to explain the necessity of applying for allotment if he was tenant of the house in question at the rate of Rs. 50 per month. The lower appellate court while concurring with the findings of fact arrived at by the trial court considered a number of other similar circumstances. The lower appellate court recorded a categorical finding that the plaintiff in collusion with Sri Krishna Das and his wife was using the address of tenant Sri Krishna Das and later on wanted to takeunauthorized possession of the entire house. One of the most Important circumstance referred to by the lower appellate court was that the appeal against the order of release under Section 21 of the Act was decided by the Additional District Judge on 24.9.85 after remand by the High Court. Writ Petition No. 14142 of 1985 was filed by Smt. Sarojni Das wife of Sri Krishna Das which was dismissed by the High Court on 20.12.85 and on that very day the plaintiff filed the present suit. The litigation between Sri Krishna Das and his wife on one side and Mohi Khan on the other side was contested from 1972 to 1985. It was not believable that during this period the plaintiff would not have learnt about the litigation. The allegations of collusion of Sri Krishna Das or his wife with landlord-defendant were not correct as according to the allegations he was using part of the house in question with consent of Sri Krishna Das. The lower appellate court, therefore, dismissed the appeal filed by the appellant.
7. Aggrieved by the dismissal of the suit by the trial court as well as dismissal of the appeal by the lower appellate court, the plaintiff-appellant has filed this second appeal.
8. Sri Murlidhar, learned senior counsel appearing for the appellant and Sri K. M. Dayal, learned senior counsel appearing for the respondents were heard at length.
9. Though in the memo of appeal, several questions of law have been framed but during arguments, only following substantial questions of law have been pressed.
1. Whether the plaintiff-appellant can be ejected from the premises in dispute in pursuance to the execution order dated 24.9.85 passed in Rent Control Appeal No. 6657 of 1979 in which the plaintiff-appellant was not made a party and inspite of the fact that the plaintiff-appellant is in occupation of portionof the premises in dispute since 1965?
2. Whether the long use and occupancy of the portion of the premises in dispute by the plaintiff-appellant with consent of the landlord and also admitted before the prescribed authority as well as in evidence before the trial court can be deemed to be Implied consent of the landlord under the provisions of Section 14 of the U. P. Act No. 13 of 1972?
10. Sri Murlidhar, learned senior counsel appearing for the plaintiff-appellant has drawn the attention of this Court to the provisions of Section 2A and Section 14 of the U. P. Act No. 13 of 1972 and has submitted that in view of the evidence on record it is undisputed that the plaintiff is occupying the building in capacity of a licensee and at the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 the licence of the appellant is regularized and the appellant shall be deemed to be an authorized licensee. He having become an authorized licensee cannot be evicted in execution of the order passed in proceeding under Section 21 of the Act against Sri Krishna Das or his wife to which he was not a party. His submission is that sub-section (5) of Section 2A provides procedure for eviction of such a licensee and the appellant can be evicted only by observing the procedure provided in sub-section (5) of Section 2A of the Act. Reliance is placed on decisions of this Court in Ram Saran Sodhi v. IVth Additional District Judge. Agra and others, 1982 (2) ARC 342 ; Avinash Chandra v. Prescribed Authority (Additional Civil Judge, IInd). Mathura and another, 1992 (2) ARC 134 and Smt. Rojeshwari Deui Srivastava v. District Judge and others. 1980 (1) UPRCC 538. Sri K. M. Dayal, learned senior counsel appearing for the respondents submits that licence under Section 2A could be for limited period and If no application for regularization ismoved and if the provisions of Section 2A were not observed, continuation for long occupation after expiry of the period of licence cannot be treated as regularization of the licence. He also submits that under Section 23 of the U. P. Act No. 13 of 1972 order under Section 21 can be enforced even against the licensee of the tenant. He has also submitted that the plaintiff-appellant has nowhere pleaded the case of licence. He has come up with a case of tenancy in his own rights and the Courts below have concurrently held that he was not tenant of the landlord. It is further submitted that there is categorical finding of the Courts below that the appellant after dismissal of the Civil Misc. Writ Petition on 20.12.85 filed by the sitting tenant. In collusion with the sitting tenant filed the present suit claiming to be the tenant in his own rights and did not claim that he was a licensee of Sri Krishna Das or his wife.
11. To appreciate the controversy in hand, it would be proper to reproduce the provisions of Section 14 and Section 2A of the Act as Inserted by U. P. Act No. 28 of 1976 w.e.f. 5.7.76.
'Section 14
14. Regularisation of occupation of existing tenants.--Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorized licensee or tenant of such building.'
'Section 2-A
2-A. Special provisions for short term, licence.--(1) Notwithstanding anything contained in this Act, a person occupying a building as owner or as tenant or in any other capacity (hereinafter in this section referred to as licensor) may permit any other person (hereinafter in this section referred to as licensee) to occupy for purely temporary residential accommodation for a period not exceeding three months without any order of allotment under Section 16.
Provided that intimation of the grant of such licence shall be given Jointly by the licensor and the licensee to the District Magistrate within one month from the date of occupation of the building or part by the licensee :
Provided further that the District Magistrate may by order, extend the maximum period of such temporary occupation up to 6 months in the aggregate (including the original period of occupation) :
Provided also that similar licence shall not be granted again to any other person in respect of the same building or part within a period of one year from the date of vacation of the building or part by the last licensee.
(2) Such licensee shall not be deemed to be a tenant for purposes of Section 20, notwithstanding that he pays or is liable to pay rent for such occupation.
(3) Such licensor shall not be deemed to have ceased to occupy such building or part within the meaning of Section 12 merely on the ground of having granted such licence.
(4) The District Magistrate shall not make an allotment under Section 16 in respect of the building or part vacated by the licensee except with the consent of the landlord.
(5) If the licensee omits or refuses to vacate the building or part after the expiry of the period of licence the licensor may makean application to the prescribed authority for his eviction and the prescribed authority shall thereupon order his eviction, and its order shall be final :
Provided that no order shall be made under this sub-section except after giving to the parties concerned a reasonable opportunity of being heard.
(6) The provisions of Section 23 shall apply to an order made under sub-section (5) as if it were an order made under Section 21 or under Section 22.'
12. Sub-section (1) of Section 2A of the Act authorizes a person occupying a building as owner or a tenant or in any other capacity to permit any other person to occupy for purely temporary residential purposes accommodation for a period not exceeding 3 months without any order of allotment under Section 16 and a person occupying with the permission of such landlord or tenant or other person is the licensee and the person permitting is the licensor. Proviso to sub-section (1) of Section 2A of the Act provides that the intimation of grant of such licence shall be jointly given by the licensor and the licensee to the District Magistrate within one month from the date of occupation and that the District Magistrate may by order extend the maximum period of such temporary occupation up to 6 months in aggregate. Sub-section (2) clearly provides that such licensee shall not be deemed to be tenant for the purposes of Section 20 notwithstanding that he pays or is liable to pay rent for such occupation. Sub-section (5) provides simple procedure for eviction of the licensee If the licensee omits or refuses to vacate the building or part after expiry of the period of licence. An application has to be moved by the licensor to the prescribed authority for eviction of the licensee. The prescribed authority, after giving a reasonable opportunity of being heard to the parties concerned, is required to pass appropriate orders under sub-section (5).
13. Under Section 14 a licensee or a tenant in occupation of the building on the commencement of 1976 Amendment Act is deemed to be an authorized licensee or tenant of the building as the case may be provided he is occupying the building with the consent of the landlord immediately before commencement of the Amending Act, 1976. It has already been seen above that the concurrent finding of fact arrived at by both the Courts below is that the plaintiff-appellant was occupying the building in collusion with the sitting tenant and not with the consent of the landlord. It is not disputed that the proceedings for release of the property in question were initiated by the landlord against the sitting tenant in the year 1972 when proceedings under Section 21 of the U. P. Act No. 13 of 1972 were initiated before the prescribed authority. Even though the plaintiff was not party to those proceedings but the proceedings for eviction of the alleged licensor of the plaintiff-appellant were thus pending on the date of commencement of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976. The conditions provided in Section 14 for regularization of the licensee or tenant were thus not fulfilled and it cannot be held that under Section 14 of the U. P. Act No. 13 of 1972, the occupation of the licensee was regularized and on the commencement of Amending Act 1976, he could be deemed to be an authorized licensee of the building. Sri Murlidhar has, however, submitted that the consent as required by Section 14 or Section 2A may be either express or Implied. His submission is that in the instant case the appellant has been living in the house within the knowledge of the defendant-landlord and he having not objected to it, he shall be deemed to have given his consent. To supplement his submission Sri Murlidhar has relied upon the decision of Ram Saran Sodhi's case (supra). It was held by the Court in Ram Saran Sodhi's case as follows :
'Counsel for the petitioner on the basis of certain decisions ofthis Court submitted that the consent of the landlord envisaged by Section 14 of U. P. Act 13 of 1972 need not necessarily be express but can also be implied and in order to find out as to whether there was implied consent the conduct of the landlord was necessary to be looked into. Since the proposition of law laid down in those cases admits of no doubt 1 do not consider it necessary to refer to those cases. The question as to whether an inference about implied consent could be drawn from the conduct of the landlord is essentially one which has to be decided on the facts of each case. Reliance was placed by counsel for the petitioner on Ram Chandra Gupta v. 1st Additional District Judge and Brij Mohon Chaturvedi v. 10th Additional District Judge, to show that in view of the conduct of the landlord in those cases an inference had been drawn about implied consent. In Ram Chandra Gupta's case (supra) daughter of the person claiming the benefit of Section 14 was the tenant. She left the house and her father occupied it. The finding of fact recorded by the District Judge in that case was that not only rent was paid by the father during the period of his occupation, the landlord had by a letter demanded the rent from the father. Emphasis was placed in that case on the aforesaid letter of the landlord.'
Some case were cited before the High Court in which the taken view was that the consent of the landlord envisaged by Section 14 of U. P. Act No. 13 of 1972 need not necessarily be express but can also be implied and in order to find out as to whether there was implied consent the conduct of the landlord was necessary to be looked into. However, the Court had distinguished those cases as in those cases the landlord had by a letter demanded the rent and the authorities had recorded a finding that the landlord had accepted the rent. In Ram Saran Sodhi's case, however, the Court wasof the view that in the instant case no material has been brought to the notice of the Court which may indicate that the landlord ever made any demand of rent from the petitioner and the finding recorded by the authorities below was that the landlord accepted the rent always under the impression that it was being paid by Liaquat Hussain as tenant. The Court, therefore, held that the occupation of the petitioner on the crucial dates was not that of a tenant and that it was not with the consent of the landlord and these were findings of fact based on appraisal of evidence which do not suffer from any such error which may Justify interference under Article 226 of the Constitution of India. The Court, therefore, held that the petitioner was apparently not entitled to the benefit of Section 14 of U. P. Act No. 13 of 1972. In the Instant case also, the categorical findings of both the Courts below are that the plaintiff was not tenant of the landlord and the landlord never demanded rent from him nor he ever accepted the rent paid by the plaintiff. On the other hand, the findings are that the plaintiff was occupying a part of the building in collusion with the sitting tenant and it is only after the sitting tenant lost at the litigation that the present suit was filed by the plaintiff. In these circumstances, no inference can be drawn that the landlord-defendant had impliedly consented to occupation of the building by the plaintiff as licensee. It is worth noting that throughout, the case of the appellant has been that of tenant in his own rights and not that of a licensee with the consent of the sitting tenant. On other hand, he pleaded that the sitting tenant had colluded with the landlord whereas the finding of the Courts below in this regard is against the plaintiff. In this view of the matter also, the plaintiff cannot now claim that he was licensee with the consent of the landlord-defendant.
14. In the instant case, there is nothing on record to show that the provisions of Section 2A (1) were complied with. Under Section 2A (1),the owner or tenant may permit any other person to occupy the building for purely temporary residential purposes for a period of not exceeding three months. The licensor and the licensee under proviso (1) of Section 2A (1) are required to give joint Intimation to the District Magistrate with regard to grant of such licence within one month from the date of occupation of the building and the District Magistrate by his order may extend the maximum period of such temporary occupation up to 6 months in aggregate. A Division Bench of this Court in Miss Asha Lata E. Robin v. Radha Swami Satsangh Sabha, 1982 (2) ARC 528, held that Section 2-A does not apply to licenses in general. It applies only to short term licenses for a period of three months or so. The present licensee was not one of that type. We are unable to accept the contention that there could not be a licence except one for a short term of 3 to 6 months as provided by the Act. The Court held that the Act was enacted to regulate tenancies and it did not provide to regulate licences whereas the preambles of Indian Easement Act, regulates the licences. The Court pointed out that the preamble of U. P. Act No. 13 of 1972 shows that the Legislature did not intend that the Act should apply where there was a conflict with the provisions of Indian Easement Act. The law relating to licences as contemplated by the Easements Act cannot be controlled or affected by the provisions of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The Court pointed out that permitting occupation by one who was not a family member would attract the provisions of Section 12. The person giving his accommodation to help one at such occasions will be threatened by a deemed vacancy and may lose his accommodation under the provisions of the Act. To save such cases Section 2-A has been enacted. Sub-section (2) provides that such licensee would not be deemed to be a tenant notwithstanding that he had been liable to payment of rent. Sub-section (3) provides that such licensor shall not be deemed to have ceased tooccupy such building within the meaning of Section 12. Sub-section (4) prohibits the allotment under Section 16. The Court was of the view that it is thus clear that the entire Section 2A has been drafted with only one purpose in view i.e., to save such licences from operation of Section 12 of the Act. In paragraph 25, the Court held that assuming that the licensee in favour of the defendant was governed by the Act, there was neither any intimation to the District Magistrate nor any extension granted by him as required by the first two provisos to sub-section (1) of Section 2-A of the Act. It will also be hit by Section 23 of the Contract Act. Thus it will be illegal and invalid. The defendant's possession under such licence would be wrongful as a mere trespasser. She has no right to continue her occupation. There is no provision barring a suit against a trespasser.
15. On behalf of the appellant however, reliance is placed on the case of Avinash Chandra (supra). That was a case in which an application for eviction of the petitioner from the accommodation in dispute was moved under Section 2A (5) read with Section 21 (1) (a) of the Act on the ground that the respondent No. 2 had allowed the petitioner to occupy two rooms in the ground floor for a short term of three months for purely residential purpose in the year 1980. Such licence was granted by the father of the applicant and after the death of the father the son became landlord and owner of the property. The applicant had pleaded that he requested the petitioner to vacate the premises several times who was occupying the building Illegally and without any right. It was specifically stated that no rent was accepted at any point of time. The petitioner, however, claimed himself to be a tenant occupying the accommodation in dispute since 1978. The prescribed authority allowed the application under Section 2A (5) and recorded a finding that petitioner's occupation is as licensee and he was, liable to be evicted under Section 2A 15). Explaining the scope of Section 2A and Section 14 of the Act it was heldthat Section 2A regulated the granting of licences and Section 14 of the Act recognized even those licences, which were continuing from before, to be legal and valid subject to condition that no suit or proceeding was pending before any Court or authority on the date of such commencement. A perusal of Section 14 clearly shows that irrespective of the time of granting licence the person in occupation shall be deemed to be an authorized licensee and such an authorized licensee could be legally evicted under sub-section (5) of Section 2A of the Act. It was in these circumstances that the Court held that it will not be proper to restrict the operation of sub-section (5) of Section 2A of the Act to the licences of the category detailed above and there is nothing in the language of sub-section (5) which may be said to be against the view that even the licensee to which Section 2A and Section 14 are not applicable can be evicted under sub-section (5). The question in the Instant case before the Court is, however, whether in execution of an order passed under Section 21 of the Act of the tenant, a person sitting in the tenanted building in collusion with the tenant could be evicted or not. The decision in Avinash Chandra's case does not help the appellant in contending that the eviction of the appellant can be only by following procedure laid down in sub-section (5). On the other hand, as already observed above. In Miss Asha Lata E. Robin's case the Division Bench held that the Act does not prohibit the filing of the suit against the licensee as it does, in the case of tenant by Section 20. As would be seen, there are number of decisions in which it had been held that in the situation like present one a person occupying the building at the behest of the sitting tenant against whom an order of eviction has been passed under Section 21 can be evicted in execution of the order in execution proceedings under Section 23 of the Act. Reference may be made to the cases of Hukum Singh a. The Prescribed Authority, Muzaffarnagar and others, 1981 ARC 6 (A Division Bench's decision of this Court), SriGanga Saran v. The Prescribed Authority. Munsif Ghaziabad and others, 1982 ARC 477, in which Division Bench's case Hukum Singh was followed and Smt. Vishnu Kant Sharma and others v. The Prescribed Authority and others, 1983 ARC 19.
16. In Hukum Singh's case (supra), the Division Bench of this Court held as follows :
The main contention of the petitioner was that he was not a party to proceedings instituted under Section 21 of the Act and hence the order dated 20.8.1979 passed under Section 23 of the Act for the implementation of the formal order dated 7.8.1975 was manifestly illegal. We have already mentioned that the petitioner filed objections to the proceedings under Section 23 of the Act which were duly considered by the Prescribed Authority in its order and were rejected on merits. A bare look at Section 23 of the Act would reveal that it can be pressed into service not only 'for evicting any tenant against whom an order is made under Section 21 'but also' against any other person in actual occupation and for putting the landlord into possession'. The ratio of Chakki Lal v. IIIrd Addl. District Judge, Mainpuri case decided by this Court supports the view which we are taking. It was observed therein :
'In my opinion, in proceedings under Section 23 for enforcement of an eviction order if any person other than the person against whom an order of eviction has been passed, claims to be in possession, the nature of his possession would have to be enquired into. If it is shown by such person that he is occupying the accommodation in his own right for Instanceas a tenant, he cannot be evicted by enforcing an order to which he was not a party. On the other hand, if his possession is only on behalf of the tenant against whom the order for eviction has been passed for instance as a sub-tenant within the meaning of Section 25 (1) of the Act or as a licensee, such person can be evicted under Section 23 while enforcing the eviction order passed against the tenant.'
In an earlier decision also it was held that as soon as an order under Section 21 was passed, the tenant as also all other persons living with him or on his behalf could be ordered to be evicted in proceedings under Section 23 which were in the nature of execution proceedings and it was not necessary that proceedings under Section 21 should be taken 'de novo'. See Keshar Dutt Dwivedi v. Prescribed Authority, Lucknow.'
17. The above decision of the Division Bench was followed in Sri Ganga Saran's case (supra) and it was held that :
'A bare look at Section 23 of the Act would reveal that it can be pressed into service not only for evicting any tenant against whom an order is made under Section 21, but also against any other person in actual occupation and for putting the landlord into possession. In the said case it was further held that the order of release of accommodation passed in Section 21 proceedings is effective as against other joint tenants who were not parties to Section 21 proceedings and the proceedings for eviction under Section 23 cover joint tenants as well. In the said Division Bench case the contention which was raised by the petitioner and the respondent was that they were joint tenants and were partners in the business like the plea whichhas been taken in the present case and the tenant against whom proceedings under Section 21 of U. P. Act No. 13 of 1972 were taken never came forward with the case that he was joint tenant with him. The Court repelled the contention, which was raised by the opposite party. Similar situation arises in this case.'
18. In Smt. Vishnu Kant Sharma's case (supra), the Court held that a licensee of a tenant is liable to be evicted under Section 23 in pursuance of an order passed under Section 21 against the tenant alone. In paragraph 10 of the judgment the Court held as follows :
'That a licensee of a tenant is liable to be evicted under Section 23 in pursuance of an order passed under Section 21 against ; the tenant alone has now been firmly established by a series of decisions of this Court see Chakki Lal v. Addl. District Judge. The petitioners have been held to be licensees of the Arya Kanya Pathshala, the petitioner No. 1 having been inducted over the said institution. Prmima facie, therefore, the petitioners are liable to be evicted under Section 23 in pursuance of an order passed under Section 21 against the Arya Kanya Pathshala which did not choose to challenge the correctness or validity of that order.'
19. In view of the aforesaid decisions even if it is held that the appellant was a licensee of the tenant. In execution of the order passed against the tenant under Section 21 the licensee shall also be liable to eviction in proceedings under Section 23 of the Act.
20. In view of the discussions made above, both the substantial questions of law raised on behalf of the appellant are decided against him and the appeal fails.
21. Consequently, the appeal is dismissed with costs.