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2010 Supreme(All) 3843
2010 (83) ALR 644
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Satyendra Singh Chauhan, J.
Chander Mal
Vs.
Additional District An Sessions Judge (Special Judge E.C Act)
R. C. No. - 37 of 2010
Decided on : 28.10.2010
Petitioner Counsel:- Tek Chand Gupta
Respondent Counsel:- C.S.C., Sanjai Srivastava, Sanjay Kumar.
The genuineness of the landlord's need and the binding nature of a decree passed by a competent court were central legal principles established in the judgment.
Headnote:
Eviction - Tenant - U.P. Act no.13 of 1972 - Section 21(1)(a)
Fact of the Case:
The petitioner, a tenant of a shop for about 20 years, faced eviction proceedings initiated by the landlords under Section 21(1)(a) of the U.P. Act no.13 of 1972 on the ground of personal need. The Prescribed Authority found the landlord's need genuine and released the shop in their favor. The petitioner appealed against this decision.
Finding of the Court:
The court found the landlord's need to be genuine and the evidence led by the petitioner to be not genuine. The court also rejected the petitioner's arguments regarding a compromise with one of the co-landlords and the jurisdiction and legality of the partition suit.
Issues: The issues included the genuineness of the landlord's need, the validity of a compromise, and the jurisdiction and legality of the partition suit.
Ratio Decidendi: The court held that the landlord's genuine need and the technical objections raised by the petitioner were not valid grounds for interference. The court also emphasized that once a decree is passed by a competent court, it is binding unless challenged by the parties.
Final Decision: The petition was found to be devoid of merit and was accordingly dismissed.
Hon'ble Satyendra Singh Chauhan, J. - Heard learned counsel for the petitioner and the learned counsel for the opposite parties.
2. Feeling aggrieved with the orders dated 11.10.1994 passed by the Civil Judge/Prescribed Authority and 29.1.2010 passed in Appeal by the Additional District Judge, the present writ petition has been filed.
3. The facts giving rise in respect of the present petition are that petitioner happens to be the tenant of the shop in question for about 20 years and the landlords have initiated the eviction proceedings by means of moving an application under Section 21(1)(a) of the U.P. Act no.13 of 1972 on the ground of personal need.
4. The application was moved jointly by all the three landlords who inherited the property in question from their father late Sri Ram Bharose. Written statement was filed by the petitioner and thereafter parties led their evidence and the Prescribed Authority after considering the evidence of both the parties found the bonafide need of respondents-landlord was genuine and, therefore, released the shop in question in favour of the landlord vide judgement and order dated 11.10.1994. Feeling aggrieved with the aforesaid order an appeal was filed and the said appeal has been dismissed vide judgement and order dated 29.1.2010, hence this writ petition.
5. Submission of learned counsel for the petitioner is that there was a compromise at the appellate stage with one of the co-landlord namely Shiv Kumar in respect of the present shop and, therefore, the said compromise was liable to be taken into consideration but the appellate authority has not considered the same while deciding the appeal.
6. The next point which has been submitted by the learned counsel for the petitioner is that partition Suit filed by the landlord was without jurisdiction and that the pecuniary jurisdiction did not lay with the court when partition suit was filed, therefore, the said judgement rendered in the partition suit is to be ignored. It has also been submitted that the share of Smt. Ram Janki could not have been surrendered in the partition proceedings and if any such surrender has been made that will amount to transfer of property in question which could not be done in the proceedings of partition suit. .
7. Learned counsel for the opposite parties, on the other hand, has submitted that that question which has been argued by the learned counsel for the petitioner have been taken into consideration by the appellate authority and a specific finding has been recorded in this regard. It was also submitted that the need of the land lord has been found to be bonafide and genuine and it has also been found by the courts below that the evidence led by the petitioner was not genuine and he was having his own shop and carrying on general merchant business (Kirana shop) in the vicinity Chandi Purwa and the sons of the landlord were having no shop for carrying any business in these circumstances the claim of the landlord to retain the shop was genuine and the shop in question was released in favour of the landlord. He has also submitted that after partition between the parties one of the shop was being used as passage for egress and ingress by the co-owners and one shop was possessed by Shiv Kumar, who is alleged to have entered the compromise with the petitioner and the other shop fell in the share of Ramasre and he is having no shop and neither any place for business and his sons are also unemployed and after partition has attained finality in Suit No. 247 of 1997 vide judgement and decree dated 24.1.2007, the things are very clear that the shop which fell in the exclusive share of Ramasre has rightly been released in favour of the landlord.
8. The question regarding jurisdiction and legality of the judgement and decree rendered in the partition suit can not be taken into consideration and it is for the parties who are aggrieved by the said judgement and decree to have challenged the said judgement and
