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2009 Supreme(All) 3513
[2009(10) ADJ 112]
ALLAHABAD HIGH COURT
BEFORE : SHISHIR KUMAR, J.
CHOTEY LAL ...Petitioner
Versus
KAMAL KISHORE .....Respondent
(Civil Misc. Writ Petition No. 52223 of 2009, decided on 11th November, 2009)
Counsel :
K.K. Arora for the Petitioner; None for the Respondent.
Headnote:U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 21(1) (a) and 30—Evidence Act, 1872—Section 116—Release application—Maintainability of—Suit filed by respondent-landlord for release of accommodation in question under Section 21(1)(a)—Prescribed authority recorded a finding that respondent has purchased property—And, there is a relationship of landlord and tenant between parties—As regards pendency of suit filed by one M.S. against Smt. A.B. it is not said that respondent is not landlord of property in question—As regards applicability of Act, prescribed authority as well as appellate authority has recorded a finding that construction was made with consent of landlord, therefore, Pakka construction has been made, application under Section 21(1)(a) is maintaianble—Prescribed authority has recorded a finding of fact on behalf of petitioner it was tried to be proved that one M.S. is onwer of property in question—But, from document 34-Gha, it is clear that it is not proved that property in dispute is a part of property mentioned in document—It is also not clear from said document that in District of Pilibhit whether property is situated, though it is admitted by parties that it is a small shop—Further, sale-deed has not been cancelled by competent authority—Further, as regards comparative hardship, a finding of fact has been recorded by both Courts that need of respondent is more genuine than petitioner—Therefore, once finding has been recorded by both Courts that need of landlord is genuine and bona fide, then partial eviction of shop in question cannot be gone into under Article 226 of Constitution. [Paras 10 and 11]
Result; Petition Dismissed.
Hon’ble Shishir Kumar, J.—This writ petition has been filed quashing the order dated 10.4.2009 (Annexure 11 to writ petition) and order dated 23.9.2009 (Annexure 14 to writ petition).
2. Brief facts arising out of writ petition are that respondent being landlord filed a suit which was numbered as P.A. Case No. 4 of 2008 for release of the accommodation in dispute under Section 21(1)(a) of the Act No. 13 of 1972. After receipt of notice, petitioner filed an objection stating therein that accommodation in dispute was initially in the form of an open piece of land let out to one Sri Allauddin and at this stage one Sri Dwarika Prasad was its owner. Sri Allauddin with the consent of Sri Dwarika Prasad sub-let the aforesaid accommodation to grandfather of petitioner namely Sri Munna Lal who had been paying rent to Sri Dwarika Prasad through Sri Allauddin @ Rs.12 per month. It has further been stated that Allauddin has collected rent from the predecessor of petitioner and he was not its real owner and rent was being collected on behalf of Dwarika Prasad. Sri Dwarika Prasad died leaving behind two daughters as his only heirs. It was stated that neither Sri Allauddin nor his successor including his son Gyasuddin were the owners of the accommodation in dispute nor they were entitled to execute any sale deed, therefore, sale deed dated 17.12.2004 through which respondent-landlord derives title is not legally and validly executed document and has not conferred any right and title on the respondent Sri Kamal Kishore. Further it was said that Sri Kamal Kishore was also gainfully engaged and did not need this disputed property for his house. It has also been denied by tenant-petitioner that he was not doing anything at the disputed place and he was running parchun shop from his house. In support of their pleadings, parties have filed their respective affidavits and brought on record various evidences. It has further been stated that when accommodation in dispute was let out, it was an open piece of land, therefore, the provision of Act No. 13 of 1972 are not applicable to the accommodation in dispute. Further, respondent is not the owner of the accommodation in dispute, therefore, he is not entitled to get the property released in his favour. Petitioner has also brought on record the affidavits of Ramesh Chand Sharma dated 5.12.2008 and of Babu Lal Sharma dated 7.11.2008 who have supported the claim of petitioner. The entire accommodation in dispute is primarily an open piece of land. Apart whereof is covered by tin-shed supported on wooden pillars on two sides and only pakka construction is towards the front which is a wall to support a gate.
3. It has further been stated that predecessor namely Smt. Afzal bibi claims herself to be the owner of the shop in dispute on the basis of judgement and decree dated 30.5.1988 passed in Original Suit No. 38 of 1988. Petitioner coming to know regarding the aforesaid fact, the actual owner of the property has taken to the satisfaction by making an application for impleadment and has also filed a Suit No. 134 of 2009 for cancellation of the judgement and decree dated 30.5.1988 as well as the sale deed dated 17.12.2004, therefore, Kamal Kishore, the respondent has got no title and interest in the property. The aforesaid application has not been decided instead it was kept pending and it was rejected on 10.4.2009 on the same date when the judgement was passed against petitioner releasing the accommodation in favour of respondent. Petitioner filed an appeal. In the meantime, during pendency of appeal, when proceeding for execution was initiated Sri Mahesh Chandra Singh has filed an objection under Order XXI, Rule 97 stating therein that he was the owner of the shop in dispute and Smt. Afzal Bibi has got no transferable right and title in property in dispute. Therefore, the sale deed executed will not confer the right but Appellate Authority has dismissed the appeal vide its judgement and order dated
